Judge dismisses class action over DayQuil co-packaged with vitamin C

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Update:

• A federal judge in Illinois dismissed a class action lawsuit against Proctor & Gamble, saying at least one claim in the lawsuit was “ill-defined and nonsensical.”
• U.S. District Judge James E. Shadid says because the plaintiff did not clearly state an alleged miscommunication the company made in its packaging of DayQuil and Super C together, the claim the packaging involved negligent misrepresentation could not proceed.
• The judge agreed that just because the two products were packaged together, it did not mean both were meant to treat cold symptoms.
• The back of the Super C bottle specifically states, “This product is not intended to treat colds or flu,” the judge says.  

DayQuil class action overview: 

• Who: A DayQuil consumer sued the product’s manufacturer, The Procter & Gamble Co. (P&G).
• Why: The plaintiff says P&G sells the product at an inflated price because it includes packs of vitamin C.
• Where: The DayQuil class action was filed in an Illinois federal court.

(Jan. 25, 2023)

The Procter & Gamble Co. (P&G) misleadingly sells packs of vitamin C with its DayQuil product, making consumers wrongly believe that vitamin C is helpful in treating cold and flu symptoms, a new class action lawsuit alleges. 

Plaintiff Jana Kampmann filed the class action lawsuit against P&G on Jan. 22 in an Illinois federal court, alleging violations of state and federal consumer laws.

According to the DayQuil class action, P&G makes and sells DayQuil marketed for “Severe Cold & Flu” with vitamin C packs under the Vicks brand.

The cold and flu DayQuil component combines acetaminophen, dextromethorphan HBr and doxylamine succinate, the lawsuit says. 

The Food and Drug Administration (FDA) evaluated all of these ingredients as suitable to treat “headache, fever, sore throat, minor aches & pains,” the class action states. However, the vitamin C pack also purports to “Energize + Replenish” by “Helping replenish essential vitamins + providing a healthy energy boost.”

Despite this, vitamin C is not proven to help cold or flu symptoms, the lawsuit states.

“While a large majority of the public believe that vitamin C can help fight off the symptoms of a cold and flu, this is false,” the DayQuil class action claims.

Product sold at a premium price, DayQuil class action alleges

By co-packaging vitamin C in a “Daytime Convenience Pack,” consumers will expect it is intended to be used with the approved DayQuil drugs for the purpose of alleviating cold and flu symptoms, the lawsuit states. 

“However, the fine print on one of the sides of the Product states, ‘THIS PRODUCT IS NOT INTENDED TO TREAT COLDS OR FLU,’” according to the class action.

Kampmann adds that the FDA considered, but rejected, approving over-the-counter combination drugs to add vitamin C because it concluded this combination would lead consumers to believe the administration approved both components for their effectiveness. The FDA does allow for packaging products together as a “convenience pack.” 

As a result of the misleading representations, P&G sells the product at a premium price of $13.49 per 12 DayQuil capsules and 14 SuperC capsules, excluding tax and sales, the lawsuit states.

Kampmann seeks to represent an Illinois class of consumers who bought the product, plus a consumer fraud multistate class of consumers from Utah, South Dakota, Kansas, Mississippi, Arkansas, Alaska and North Carolina. 

She sued for violations of state consumer laws, breach of warranty, negligent misrepresentation, fraud and unjust enrichment and seeks certification of the class action, damages, fees, costs and a jury trial.

In related news, a consumer hit Ricola with a class action lawsuit alleging it misleadingly represents that its green tea with echinacea throat drops gets its cough suppressant abilities from green tea and echinacea when their active ingredient is actually menthol. 

What do you think of the allegations in this DayQuil class action? Let us know in the comments. 

The plaintiff is represented by Spencer Sheehan of Sheehan & Associates PC. 

The DayQuil class action lawsuit is Jana Kampmann et al., v. The Procter & Gamble Co., Case No. 1:23-cv-01021-JES-JEH, in the U.S. District Court for the Central District of Illinois.

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