BJ’s class action alleges non-drowsy medication cause drowsiness

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BJ’s non-drowsy medication class action overview:

• Who: BJ’s Wholesale Club has been hit with a class action lawsuit by a customer.
• Why: The customer alleges the company’s “Non-Drowsy” daytime cold and flu medication actually makes consumers drowsy.
• Where: The BJ’s class action was filed in New York federal court.

BJ’s makes and sells over-the-counter cold and flu medicine marketed as “non-drowsy” and for “daytime” when in fact the active ingredient is known to make people drowsy, a new class action lawsuit alleges. 

Plaintiff David Rothberg filed the class action lawsuit against BJ’s Wholesale Club Holdings Aug. 1 in a New York federal court, alleging violations of federal and state consumer laws.

He says BJ’s makes and sells Berkley Jensen Non-Drowsy Daytime over-the-counter cold and flu medicines that contain Dextromethorphan Hydrobromide (DM HBr).

The products state prominently on the front of their product packaging that they are “Non-Drowsy” and “Daytime” products, the non-drowsy medication lawsuit states.

“However…while the average consumer may not be aware, drowsiness is a documented side effect of DM HBr at dosages recommended by Defendant in respect to the Non-Drowsy Products,” it says. “Authorities such as the National Library of Medicine and Mayo Clinic list drowsiness as a side effect of this ingredient.”

Non-drowsy medication made plaintiff sleepy, BJ’s class action alleges

When the plaintiff took the medication as directed, he became unexpectedly drowsy, he says.

He added that he was not on any other medication that would have caused drowsiness and there was no other potential cause for this drowsiness aside from the ingredients in the medication, according to the BJ’s class action.

By prominently labeling the products as “Non-Drowsy,” BJ’s led Rothberg and other consumers to believe that the products do not cause drowsiness and that drowsiness is not a side effect of the products, Rothberg says.

BJ’s also led them to believe that the products were intended to be used during waking hours, he claims. 

Rothberg is suing for breach of express warranty and violations of New York General Business Law, unjust enrichment, negligent misrepresentation and intentional misrepresentation.

He’s seeking certification of the BJ’s class action lawsuit, damages of at least $5 million for a nationwide class of people who bought the product, fees, costs and a jury trial. 

In related news, a class action lawsuit filed in May alleges Target Corp. falsely represents that the up & up brand over-the-counter cough medicines it makes, markets and sells are “Non-Drowsy.” 

Meanwhile, another lawsuit filed in June alleges Bayer manufactures, markets and sells over-the-counter Alka-Seltzer cold and flu medicine labeled as “non-drowsy” even though it contains an ingredient that causes drowsiness.

Have you felt drowsy after taking non-drowsy medication? Let us know your experience in the comments! 

The plaintiff is represented by Mark S. Reich and Courtney E. Maccarone of Levi & Korsinsky, LLP and Nick Suciu III and Gary M. Klinger of Milberg Coleman Bryson Phillips Grossman, PLLC.

The BJ’s non-drowsy medication class action is David Rothberg v. BJ’s Wholesale Club Holdings, Inc., Case No. 2:22-cv-04511, in the U.S. District Court for the Eastern District of New York.

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