Judge trims Tussin non-drowsy claims but allows class action to proceed

Update: 

• A federal judge in Illinois trimmed a class action filed against the makers of a Tussin-brand cough syrup over claims the product is deceptively labeled as “non-drowsy.”
• U.S. District Judge Steven Seeger ruled the consumer behind the complaint plausibly showed the “non-drowsy” labeling for TopCare Non-Drowsy Tussin CF Multi-Symptom Cold Medication deceives consumers into thinking they are taking a product that will not cause them to feel sleepy. 
• Judge Seeger trimmed claims for breach of warranty, however, ruling the consumer waited too long to pursue them. 
• The consumer argues she became sleepy after taking the Tussin cough syrup despite its “non-drowsy” representations. 

“Non-Drowsy” Cough, Cold and Flu Medicine class action lawsuits overview:

• Who: Cough medicine consumers are suing Rite Aid, TopCare and GlaxoSmithKline — the maker of Robitussin — over their “non-drowsy” cough medicines
• Why: The consumers says the companies market cough medicines as non-drowsy when they are not, because they contain DXM
• Where: The lawsuits seek to represent nationwide Classes of consumers

(Feb. 21, 2022)

Three new class action lawsuits are taking aim at some of the country’s biggest producers of cough medicine, claiming medicines are being sold as “non-drowsy” when they in fact make you drowsy.

On Feb. 16, Rite Aid, TopCare and the maker of Robitussin — GlaxoSmithKline — were each hit with almost identical class action complaints in federal courts, alleging they breached multiple state and federal consumer laws in the marketing of cough, cold and flu medicines.

In one of the cases, Plaintiff Christian Lemus says Rite Aid Corporation makes, sells, and markets over-the-counter cough, cold and flu medicine, including generic versions of brands like DayQuil and Robitussin, that make consumers drowsy. 

“Like the branded versions, these medicines contain the active ingredient Dextromethorphan Hydrobromide (DXM), an ingredient that causes drowsiness,” the lawsuit states

“Plaintiff brings this case for himself and for millions of other consumers who purchased Non-Drowsy Rite Aid Products.”

Meanwhile Plaintiff Nancy Calchi claims that Topco Associates products state prominently on the front of their label that they are “non-drowsy,” leading consumers to believe the products can be used safely while working and driving. 

“But the truth is that products containing DXM — and thus the Non-Drowsy TopCare Products — do cause drowsiness, and that drowsiness is a known side effect of DXM (a fact not known by the average consumer),” the class action states.

Calchi is suing on behalf of anyone who bought TopCare non-drowsy products in the United States, and brings claims for violations of state consumer laws, New York general business laws, breach of warranty and intentional misrepresentation.

Calchi is also the plaintiff in the class action complaint against GlaxoSmithKline, which alleges at least 16 Robitussin products containing DXM prominently state on the front of their label that they are “Non-Drowsy.” She’s also looking to represent anyone in the United States who bought non-drowsy Robitussin.

“Defendants’ misrepresentations allowed them to overcharge Plaintiff and other consumers for the Non-Drowsy Robitussin Products,” she says.

In each case, the plaintiff is seeking certification of the class action, damages, fees, costs, and a jury trial.

Companies join Tylenol, Dayquil in growing list of medicines facing class actions over ‘non-drowsy’ false advertising

The class actions come just weeks after a class action lawsuit was filed against Tylenol alleging similar claims. Previously, a class action was filed against Procter & Gamble, claiming its popular cough medicine DayQuil is marketed as being non-drowsy; however, it contains ingredients that do, in fact, make you drowsy.

Pfizer and GlaxoSmithKline are also fighting another lawsuit alleging their cough medicine, Robitussin, which is also labeled as “non-drowsy,” may cause drowsiness.

Do you sometimes feel drowsy when you take non-drowsy cough medicine products? Let us know in the comments. 

The plaintiffs in each case are represented by Jonas Jacobson and Simon Francine of Dovel & Luner, LLP and Yeremey Krivoshey and Brittany S. Scott of Bursor & fisher, P.A. 

The Topco Class Action Lawsuit is Nancy Calchi v. Topco Associates, LLC, Case No. 1:22-cv-00747 in the U.S. District Court Northern District of Illinois

The GSK Non-Drowsy Class Action Lawsuit is Nancy Calchi v. GlaxoSmithKline Consumer Healthcare et al., Case No. 7:22-cv-01341 in the U.S. District Court Southern District of New York

The Rite Aid Non-Drowsy Class Action Lawsuit is Christian Lemus v. Rite Aid Corporation, Case No. 8:22-cv-00253 in the U.S. District Court Central District of California Southern Division

Read About More Class Action Lawsuits & Class Action Settlements:

• Cassava agrees to $40M settlement over misleading Alzheimer’s clinical trial statements
• FTC claims pharmacy benefits managers inflate insulin prices
• $106.8M Walgreens settlement resolves false billing claim lawsuits
• Robitussin settlement reached over ‘non-drowsy’ claims