Ready In Case “Non-Drowsy” Cold and Flu Relief Class Action

PL Developments Copiague, LLC makes a Ready In Case Cold and Flu Relief antitussive drug product that is intended to treat colds, flu, and coughs. The complaint for this class action alleges that, while the product s marketed as being “Non-Drowsy,” it does in fact induce drowsiness, because it contains dextromethorphan hydrobromide (dextromethorphan Hbr).

Two classes have been defined for this action:

• The Michigan Class is all persons in Michigan who bought the product during the applicable statutes of limitations.
• The Consumer Fraud Multi-State Class is all persons in Iowa, New York, New Hampshire, New Mexico, Georgia, Michigan, Texas, Arkansas, Delaware, Wyoming, Virginia, and Oklahoma who bought the product during the applicable statutes of limitations.

PL Developments Copiague makes private-label, over-the-counter products as well as products under its own Ready To Care brand. Its products are sold at grocery stores, dollar stores, warehouse club stores, convenience stores, and big box stores, as well as online.

According to the complaint, Dextromethorphan Hbr “is well-known for causing drowsiness.”

Page 1 of the complaint shows an image of the product, with a close-up of a part of the front label that makes a number of representations, including “non-drowsy.”

The complaint alleges, “Though the product is represented as ‘non-drowsy,’ it contains dextromethorphan Hbr, which is well-known for causing drowsiness. Page 2 contains an image of part of the Active Ingredients label listing Dextromethorphan Hbr.

According to the complaint, “[n]umerous governmental agencies and third[ ]parties caution users of products containing dextromethorphan Hbr from engaging in activity which requires them to be alert, because this [ingredient] can cause drowsiness.”

The complaint alleges, “The representation of ‘non-drowsy’ misleads consumers who expect they are purchasing a cold and flu product that will not make them drowsy or increase the changes they [may] become drowsy.” Because of that, the complaint says, “[t]he value of the Product that [the plaintiff in this case] purchased was materially less than its value as represented by” the company.

Therefore, the complaint claims, the company “sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers.” If consumers had known that the product in fact might induce drowsiness, the complaint alleges, they would not have bought the product, or they might not have been willing to pay as much for it.

The counts include violations of consumer protection statutes and consumer fraud acts, negligent misrepresentation, fraud, and breach of express warranty, among other things.

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Labels, Non-Drowsy Claims