CATrends: OTC Cold and Flu Medicines Falsely Marketed as ‘Non-Drowsy’

This article highlights a trend in the filing of class-action lawsuits as identified by our Class-Action Tracker, aka CATrends.

For consumers in need of cold and flu relief that doesn’t knock them out or make them feel sluggish, non-drowsy claims are, shall we say, nothing to sneeze at. But according to a recent trend in class-action litigation, several over-the-counter flu and cold medicines marketed as “non-drowsy” contain an ingredient that causes drowsiness.

“Consumers want to take over-the-counter drug products that help them feel better, but also allow them to be active, either for work or they desire to maintain control of their senses,” states a lawsuit filed against Walmart earlier this month.

Walmart’s Equate brand of cold and flu products is one of several OTC medicines marketed as “non-drowsy” that contain the snooze-inducing ingredient dextromethorphan hydrobromide, or DXM, lawsuits allege.

Other brands include DayQuil, marketed by Procter & Gamble, and Robitussin, marketed by GlaxoSmithKline. Walgreens and CVS have also been accused of falsely marketing medicines as “non-drowsy.” All of the lawsuits were filed during the peak of flu season, which has coincided with a surge in Omicron coronavirus cases.

Several of the lawsuits cite an entry for dextromethorphan on the government-run health information site Medline Plus, which lists drowsiness as a possible side effect. Other side effects include dizziness, nausea, vomiting and stomach pain, according to the site.

The “non-drowsy” claims generally appear on the front label of products. The lawsuit against Procter & Gamble alleges:

By prominently labeling these products as “Non-Drowsy,” Defendant led Plaintiff and other reasonable consumers to believe that the Non-Drowsy DayQuil Products do not cause drowsiness, and that drowsiness is not a side effect of those products. But the truth is that products containing DXM – and thus the Non-Drowsy DayQuil Products – do cause drowsiness, and that drowsiness is a common side effect of DXM.

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