SEATTLE (Legal Newsline) - A potential class action against Amazon.com over non-drowsy cold medicine has been settled, though the parties have not revealed if only the named plaintiffs will recovery anything or if a class will be certified.
Facing a motion to dismiss by Amazon.com, lawyers for Susan Fitzl and Samantha Horton on Dec. 1 reported to the federal court in Seattle that they have reached an agreement. A stipulation of dismissal is to be filed within 30 days of that date.
The plaintiffs claim Basic Care-brand medicines contain Dextromethorphan Hydrobromide." The capsules’ packaging contains the words “Daytime” and “Non-Drowsy.” The suit alleges class members like Fitzl became “unexpectedly drowsy” when using them.
The labels passed the Food and Drug Administration's approval process, Amazon says, which preempts the claims made in the lawsuit. Further, the FDA found no data that supports claims DXM makes a person drowsy enough to require a warning, the motion to dismiss says.
"Plaintiffs assert that Amazon should have omitted the 'non-drowsy description, changed the label to 'less drowsy,' or disclosed drowsiness as a side effect," the motion says.
"Plaintiffs ignore, however, that '(w)ith respect to the labeling of (over-the-counter) drugs, the whole point of the (Food, Drug and Cosmetic Act) is that it is not up to private litigants - or judges - to decide what is 'false or misleading.' It is up to the FDA,'" the motion says, citing a 2014 ruling for Johnson & Johnson.
That decision involved the company's claims Listerine could restore tooth enamel. In the Amazon case, lawyers at Phillips Law Firm, Milberg Coleman and Levi & Korsinsky are pursuing the class action, while K&L Gates reps Amazon.