(CN) - A federal judge refused to toss a class action against the makers of allegedly useless homeopathic cold medicine made from plants, insects, metals and poison.
Lead plaintiff Gina Delarosa sued Boiron Inc., the maker of Children's Coldcalm homeopathic tablets, for fraud and unfair competition in California's Central District Court.
Delarosa said the tablets, which advertises "relief from sneezing, runny nose, nasal congestion, sinus pain, headaches and sore throat," didn't work.
Boiron moved for a judgment on the pleadings, saying federal law pre-empted Delarosa's claims.
U.S. District Judge Josephine Staton Tucker disagreed.
The Federal Food, Drug, and Cosmetic Act's (FDCA) definition of "drug" includes homeopathic remedies like Coldcalm, but the Food and Drug Administration does not "vouch for, or even investigate, homeopathic drugs' safety and efficacy," Tucker wrote.
Prior cases cited by Boiron also failed to convince the judge since she found that they dealt with nonhomeopathic drugs evaluated by the Food and Drug Administration.
"Indeed, under defendant's arguments, defendant could state that Coldcalm would relieve symptoms of allergies, lessen headaches and back pain, improve a person's visage, and eliminate the occurrence of body odor, regardless of whether the drug did any of these things, without violating the FDCA," Tucker wrote.
"This would create the perverse effect that Coldcalm would not violate the FDCA if it set forth indications for use that were false, but it would violate the FDCA if was completely ineffective, yet did not contain an indication for use."
Tucker also found that Delarosa made her fraud claims with "sufficient specificity."