"Since this one and only use of Zicam Cold Remedy Nasal Spray, plaintiff
Dennis Christensen has totally lost his sense of smell," the lawsuit
said.
In its answer to the complaint, in regard to Zicam spray, Matrixx said
it had met all of the FDA "requirements to lawfully market an over the
counter homeopathic drug in interstate commerce in the U.S."
But here lies the problem. Because Zicam contains the naturally
occurring mineral zinc, long recognized as being safe, it is considered
a "homeopathic" remedy, and is exempt from the regulations that govern
the testing and manufacturing of regular drugs. As such, Zicam was not
required to obtain FDA approval before entering the market.
A second lawsuit was filed on December 18, 2003, in Etowah County,
Alabama, by Janie Sutherland, and also named Wal-Mart as a defendant.
The third lawsuit was filed in Maricopa County, Arizona, in January
2004, by 3 plaintiffs claiming to have lost their sense of smell and
taste immediately after using Zicam.
After that, lawsuits began sprouting up all over the country.
The recent settlement agreement with the 340 plaintiffs, was announced
jointly by Matrixx spokesman, Robert Murphy, and Arizona lawyer Charles
Zimmerman, on behalf of a group of attorneys representing plaintiffs
from all across the country.
Under the terms of the settlement, the average pay-out per plaintiff
will be about $21,000, but the amount will vary based on the extent of
the injury to each individual.
Matrixx spokesman, Murphy, said the company was not admitting liability,
but settling the case made good business sense because Matrixx had
already spent about $12 million in legal fees defending against claims
related to the nasal spray.
However, $12 million here or there is mere chickenfeed to Matrixx when
considering the fact that the company markets 22 products in the booming
$3-billion-plus over-the-counter cough and cold industry. Its zinc nasal
spray gel is the only one of its kind on the market and has reportedly
sold more than 10 million bottles since it was introduced to consumers
in 1999.
Cold-Eeze, was a competing zinc spray, but after being hit with a few
anosmia lawsuits, the product was pulled off the market by the
manufacturer in 2004, after only a year on the shelves.
According to Matrixx earnings reports, the company's net sales last year
were more than $46 million during the first 9 months of 2005, which was
about 40% higher than sales during the same period in 2004.
Besides, according the company's January 2006, SEC filing, Matrixx
expects about 40% of the $12 million to be covered by insurance.
However, the settlement does not cover all lawsuits filed against
Matrixx. About two dozen are still pending involving Zicam nasal swabs,
as are 32 lawsuits filed outside of Arizona. And, it has not slowed
Zicam users from filing new personal injury claims against Matrixx.
According to the FDA adverse-event database, in 2004, there were 133
adverse reaction reports on users of Zicam products. Most of the
complaints involved the nasal gel and the loss of smell. However,
because smell heavily influences taste, people often report a loss of
taste along with the loss of smell.
Because these products are not required to prove efficacy, not
surprisingly, studies have shown that zinc nasal sprays are pretty much
ineffective. While two placebo-controlled trials showed that intranasal
zinc gluconate modestly shortened the duration of cold symptoms, 2 other
studies found the product provided no benefits.
In any event, never mind the lawsuits, the company recently came under
the scrutiny of a much larger predator. On March 21, 2006, Matrixx
received a letter from the Federal Trade Commission's East Central
Region Office in Cleveland, Ohio, notifying the company that the FTC is
conducting an inquiry into the company's advertising and promotional
activities for the following products: Zicam Cold Remedy Nasal Gel;
Zicam Cold Remedy Swabs; Zicam Cold Remedy Swabs for Kids; Zicam Cold
Remedy RapidMelts; Zicam Cold Remedy Chewables; and Zicam Cold Remedy
Oral Mist.
The purpose of the inquiry, according to the company’s April 2006, SEC
filing, is to determine whether Matrixx engaged in "unfair or deceptive
acts or practices" in violation of the FTC Act. The agency has requested
that the firm provide certain information by April 27, 2006.
Matrixx says it is cooperating fully and believes that its
advertisements and promotional activities are accurate and comply with
“laws and regulations in all material respects.”
In another interesting turn of events, on November 23, 2005, the FDA
sent Charles Hensley, co-inventers and patent holder of Zicam, a letter
about another one of his other products called Vira 38, which he
apparently was marketing on a web site as an effective means of treating
influenza, bird flu and SARS.
The FDA informed Hensley that by selling an unapproved drug, he was
violating federal law, and basically, told him to knock it off or he
could face legal action including the "seizure of illegal products."
Some ear, nose and throat specialists say the problem with Zicam is that
the force of the spray bottle propels the product too high into the nose
where it comes in contact with the tissue containing the olfactory
nerve. No doubt with this in mind, last year, Matrixx developed a new
"control tip" for the bottle that is supposed to prevent the gel from
reaching this sensitive area of the nose.
At about the same time the new tip was announced, Matrixx launched a
major advertising campaign featuring testimonials from product users,
including one presumably aimed at drug addicts, by none other than radio
talk show host, Rush Limbaugh, the old prescription drug-fiend himself.
Which means its probably safe to predict that sales may increase among
coke heads, or other illicit drug snorters, with little danger of
potential lawsuits being filed by a group of consumers who can't smell
that well to begin with.
More information for injured parties can be found at Lawyers and
Settlements.com
http://www.lawyersandsettlements.com/articles/zicam.html
By Evelyn Pringle
Evelyn Pringle is a columnist for Independent Media TV and an
investigative journalist focused on exposing corruption in government.
Contact Evelyn
Related Books
Keywords and misspellings: politics poletics
democrat demoncrat republican repub comentary commentary
RSS Legal
News Feed
