CVS Sued for Misleading “Non-Drowsy” Medicine Labeling

CVS is to face a lawsuit over allegedly misleading “non-drowsy” labeling on its branded cough medicine, which is alleged to inaccurately inform consumers about the side effects of the product while consumers are making their purchasing decisions.

A consumer filed a class-action complaint against CVS Health Corporation and CVS Pharmacy, Inc. on Friday in the Southern District of New York for labeling certain CVS-branded products as “Non-Drowsy,” despite these products purportedly causing drowsiness.

According to the complaint, the defendants “make, sell, and market ‘CVS Health’ over-the-counter cough medicine, including generic versions of brands like Robitussin, DayQuil, and Tylenol.” The plaintiff notes that both CVS’ version and the original versions often “contain the active ingredient Dextromethorphan Hydrobromide (‘DXM’).” The plaintiff asserts that many of the CVS Health products are clearly labeled as “non-drowsy” on the front of their label. However, the plaintiff alleges that this labeling is misleading because these products still cause drowsiness, a common side effect of DXM, particularly at the recommended doses. The plaintiff adds that various studies noted that drowsiness is a side effect of DXM and that the FDA states that “sedation” is a side effect of DXM.

An example of the products and purported mislabeling is shown below:

Furthermore, the plaintiff claims that the CVS Non-Drowsy products “do not disclose anywhere on their packaging that they do or can cause drowsiness, or that drowsiness is a side effect.” The plaintiff asserts that because of the clear and prominent “non-drowsy” labeling on the front of the products, consumers will believe that these products do not cause drowsiness and that drowsiness is not a side effect of the products.

As a result, the plaintiff contends that CVS misled the plaintiff and other consumers about the side effects of its “non-drowsy” CVS-branded products because they do and can cause drowsiness. The plaintiff proffers that this is a “material misrepresentation” upon which the plaintiff and other consumers “relied on when deciding to buy the products.” According to the complaint, consumers buy “non-drowsy” cough medicine “specifically because they want to avoid drowsiness, like at work or when driving.” The plaintiff avers that if CVS labeled its products appropriately, the plaintiff and other consumers would not have purchased these products or would have paid less for the products.

The plaintiff adds that non-drowsy should refer to antihistamines and other drugs that will not make people drowsy. According to the complaint, “DXM is an active ingredient in Mucinex DM, sold by Reckitt. But the Mucinex label does not claim that Mucinex DM is non-drowsy.” Therefore, the plaintiff asserts that CVS could have omitted this “non-drowsy” labeling or state that it could cause less drowsiness than other products (like Dramamine does for one of its products).

According to the complaint, the plaintiff bought CVS Health Severe Tussin CF, which is labeled as “non-drowsy,” but after taking the medicine she became “unexpectedly drowsy.” The plaintiff states that she would not have purchased the product if she knew she would be drowsy or that it could cause drowsiness.

The proposed nationwide class includes “all persons who purchased a Non-Drowsy CVS Health Product in the United States during the applicable statute of limitations.” There are also certain subclasses, such as the Consumer Protection Subclass and the New York Subclass.

The counts against CVS are breach of express warranty, violations of state consumer protection acts, violation of New York General Business Law §§ 349 and 350.

The plaintiff seeks class certification, judgment in the plaintiff and putative class’s favor, an award for damages, restitution, disgorgement and other equitable relief, pre and post judgment interest, an injunction, an award for costs and fees and other relief.

The plaintiff is represented by Dovel & Luner LLP.