Zicam MDL Approved

The Judicial Panel on Multi-district Litigation approved an MDL for Zicam on October 9, 2009.

The moving plaintiffs requested that the JPML send ten consumer class action cases to a federal district court, along with 30 later discovered related actions (“tag-along actions”). The Defendants, Matrixx Initiatives, Inc., Zicam, LLC, and Zicam Swab, LLC, supported centralization, while other plaintiffs opposed it.

The cases are being transferred to the U.S. District Court for the District of Arizona and will be overseen by Judge Frederick J. Martone (a 2001 George W. Bush appointee).

Interestingly, the moving plaintiff and other plaintiffs requested that the JPML only consolidate the consumer classes, leaving out personal injury claims. However, the JPML ruled that:

We also decline to separate purported consumer class actions from other actions alleging only personal injury. Centralization of all actions in this docket will allow a single judge to structure pretrial proceedings to accommodate all parties’ legitimate discovery needs while ensuring that the common parties and witnesses are not subjected to discovery demands that duplicate activity that will or has occurred in other actions.

So, the cases will include actions for personal injury. The judge will have to perform some legal gymnastics to keep everything properly separated, but it is a good ruling. Of course, in all of these actions (now designated as MDL-2096), a major issue will be whether Zicam products (Zicam Cold Remedy Nasal Gel; Zicam Cold Remedy Swabs, Kids Size; and Zicam Cold Remedy Gel Swabs) cause anosmia or loss of smell. See our previous Zicam posts.

Zicam Lawsuit History

Zicam is a brand of over-the-counter cold remedies that has been the subject of several lawsuits over the years. The product was first introduced in 1999 and quickly became popular among those seeking relief from cold and flu symptoms. However, in the early 2000s, reports began to emerge of consumers experiencing a loss of sense of smell after using Zicam nasal products.

One weakiness in the loss sense of smell lawsuits was that while the active ingredient in Zicam, zinc gluconate has been associated with a loss of sense of smell in some studies., the mechanism by which this occurs is not well understood.  So experts could point to causation.  But from a litigation standpoint, being able to explain the mechanism of injury would have helped the jury appeal of these claims.

Round 1 of Zicam Lawsuits

In 2003, the first lawsuits were filed against Zicam and its parent company, Matrixx Initiatives, alleging that the products caused anosmia, or a permanent loss of the sense of smell. The plaintiffs claimed that the company had knowledge of the potential side effects but failed to adequately warn consumers.

In 2004, the U.S. Food and Drug Administration (FDA) issued a warning letter to Matrixx Initiatives, stating that Zicam products were not approved by the agency and could pose a health risk. The FDA also cited reports of consumers losing their sense of smell after using the products.

In response to the lawsuits and the FDA warning, Matrixx Initiatives agreed to stop selling the original Zicam nasal products in 2009. The company also settled a class-action lawsuit for $12 million, but did not admit any wrongdoing.

Round 2 of Zicam Lawsuits

However, the litigation against Zicam did not end there. In 2010, another class action lawsuit was filed against the company, alleging that Zicam oral products, including zinc lozenges and gummies, also caused a loss of sense of smell. The lawsuit was eventually settled for $11 million in 2016, with Matrixx Initiatives again denying any liability.

2020 Lawsuit

Despite the settlements, Zicam continues to be the subject of controversy and litigation. In 2020, the company faced another lawsuit alleging that its zinc lozenges caused a loss of sense of smell, which was later dismissed.

2021 Zicam Consumer Class Action Dismissed

A consumer class suit alleged Church & Dwight Inc. deceptively marketed Zicam as “clinically proven” to shorten colds when no such evidence existed. Plaintiffs contented that medical studies show that zinc lozenges are no more effective than a placebo. That would seem to be a long way from clinically proven, right?  So the core of this was that Church & Dwight knows what the literature really say, know that its products are no more effective than a placebo… but fail to disclose that fact to consumers.

2022 Zicam Lawsuit Makes Yet Another Comeback

Yet another Zicam consumer class action lawsuit was filed against Church & Dwight, this time in California’s Eastern District Court over its Zicam pre-cold medication.  The law firm of Bursor & Fisher  brought the claim that yet again alleges false claims about reducing colds.  The case is 2:22-cv-00044, Vance v. Church & Dwight Co., Inc.

This lawsuit is tighter than the last one from a viable consumer class action lawsuit standpoint. The point of this lawsuit is not the Church & Dwight lack substantiation for the claims that Zicam Pre-Cold Products prevent or mitigate cold symptoms, although that is certainly what plaintiffs contend.  But the gist of this lawsuit, regardless of the lack of substantiation of the representations, is that the labeling statements at issue are “affirmatively false or misleading, or otherwise have the capacity to deceive or confuse reasonable consumers.”

Specifically, the lawsuit claims that in spite of these product labeling:

• Zicam pre-cold products are not a cold remedy and do not shorten colds
• Zicam pre-cold products do not reduce the duration of the common cold and do not the severity of cold symptoms
• Zicam pre-cold products are not “medicine.”
• Taking Zicam pre-cold products “at the first sign of a cold” has no beneficial effect on the duration or severity of cold symptoms.
• Zicam products are no more effective than a placebo

Our Lawyers Are Not Taking Zicam Claims

We find these misrepresntation issues interesting.  But our law firm is not handling Zicam lawsuits.