TRENTON, N.J. (Legal Newsline) - A federal judge has turned down Bayer's motion to dismiss a proposed class action lawsuit that argues its non-drowsy Alka-Seltzer products cause sleepiness.
The case says Bayer's cold and flu medicines contain an ingredient known as DXM, which causes the "well-documented" side effect of drowsiness. New Jersey judge Madeline Cox Arleo granted only two of Bayer's arguments for dismissal of the plaintiff's six claims.
Arleo tossed claims for intentional and negligent misrepresentation because the suit seeks purely economic damages, but allowed claims for breach of express warranty, violations of Michigan and Florida consumer protection statutes and unjust enrichment to continue.
Bayer had argued the lawsuit was preempted by the federal Food, Drug, and Cosmetic Act.
"The crux of Defendant's preemption argument maintains that the Court may not hold Bayer liable for labeling a product 'non-drowsy' when that labeling complies with the FDA's monograph, despite Plaintiff's allegations that the label is misleading," the decision says.
"Specifically, Defendant alleges that by adding a 'requirement' not addressed in the OTC products' monograph (i.e., a prohibition on the term non-drowsy), the Court would be running afoul of the FDCA's prohibition on state law claims that are 'in addition to' or 'not identical with' one of the FDA's requirements. This argument is misguided.
"The FDA did not explicitly prohibit or require the use of the phrase 'non-drowsy' on products containing DXM. The relevant monograph is silent regarding whether an antitussive's label must address drowsiness."
The ruling allows lawyers at Dovel & Luner to continue pursuing their claims, which are similar to many other class actions against other manufacturers of "non-drowsy" cold and flu medicines.
Amazon settled the lawsuit against it in December, as did Rite Aid on April 19. The judge in the Rite Aid case had denied the company's motion to dismiss in July, ruling a "reasonable consumer" could have been misled.