LOS ANGELES (Legal Newsline) – Rite Aid will have to continue fighting a lawsuit that claims its non-drowsy cold and flu makes users sleepy, as a federal judge has allowed parts of a class action to continue.
U.S. District Judge David Carter, of the Central District of California, on July 7 dismissed parts of Christian Lemus’ case over the ingredient DXM but allowed others to move forward. The ruling says it is possible that a reasonable consumer could have been misled by the “non-drowsy” claims on the package.
“Plaintiff cites to Consumer Reports’ guidance on OTC medication labels, which asserts that ‘Non-Drowsy is code for antihistamines and other medications that don’t make you sleepy,’” the ruling says.
“Plaintiff then displays packaging of a medication that contain DXM but does not contain the phrase ‘Non-Drowsy’ and another product containing a different active ingredient that advertises itself as ‘less drowsy’ to indicate that consumers would infer that a product affirmatively labeled ‘Non-Drowsy’ does not cause drowsiness.
“Reading the pleadings in the light most favorable to Plaintiff, Plaintiff has plausibly alleged that a reasonable consumer would interpret ‘Non-Drowsy” to mean that the medication would not cause drowsiness.”
Whether attorneys at Dovel & Loner can prove it will be determined later. They will be pursuing negligent misrepresentation and fraud claims, as well as amending the case to try to pursue claims under similar consumer protection laws of multiple states.
The lawsuit says Rite Aid’s over-the-counter non-drowsy medicine for colds and flus contains dextromethorphan hydrobromide, which causes sleepiness. The lawsuit is not preempted under the federal Food, Drug and Cosmetic Act, Carter wrote.
“Plaintiff’s allegations… are not that the medication should have carried a drowsiness warning, but rather that the phrase ‘Non-Drowsy’ was misleading because DXM may cause drowsiness,” he wrote.
“Because the FDA has not expressly approved the use of the phrase ‘Non-Drowsy’ on products containing DXM, and Plaintiff has plausibly alleged that DXM may cause drowsiness… Plaintiff has properly alleged that Defendant’s labeling of the medication was misleading.”