Target Up & Up “Non-Drowsy” Cold and Flu Medicines Missouri Class Action

Target has its own “Up & Up” brand of generic medicines, including a line of cough and flu medicines it advertises as being “Non-Drowsy.” The complaint alleges they are “deceptively, misleadingly, and dangerously marketed” because they contain dextromethorphan hydrobromide (DXM), a substance that the complaint claims actually causes drowsiness.

The class for this action is all Missouri citizens who bought the products in Missouri between August 19, 2017 and August 19, 2022.

Pages 5 and 6 of the complaint show images of some of the products at issue, with an enlargement of the Non-Drowsy tag shown on their labels.

In some cases, the complaint alleges, the supposedly non-drowsy medicines are placed together with their nighttime counterparts: “In this manner, the Products’ ‘Non-Drowsy’ claims are enhanced in the mind of the consumer, who is left even more with the impression that the Products will not cause drowsiness.”

However, the complaint alleges that DXM causes drowsiness, referring to the National Institutes of Health (NIH) and the National Library of Medicine’s MedlinePlus as stating this.

The Federal Aviation Authority (FAA) forbids pilots to fly while they are under the influence of products containing DXM. “Indeed,” the complaint alleges, the FAA advises that, if a pilot ingests cough medications ‘containing [DXM], [they] should not fly for at least 5 half-lives after the last dose,’ which is a minimum of thirty hours according to the dosage rate.”

Also, the complaint cites the “Cough, Cold and Allergy” chapter of Applied Pharmacology (2011) as saying that drowsiness and dizziness are side effects of DXM, and the “Dextromethorphan” chapter of xPharm: The Comprehensive Pharmacology Reference as saying that “[a]dverse effects produced by dextromethorphan include drowsiness, fatigue, [and] dizziness.

Also cited by the complaint as supporting this opinion are the Mayo Clinic’s website and WebMD.

Studies of alternatives to DXM, as quoted by the complaint, also note that DXM causes drowsiness. The complaint also quotes other drug authorities as saying that DXM can cause “somnolence” or “sedation.”

The complaint faults the company for making “deceptive, misleading, unfair and false” non-drowsy claims, but that’s not all. It alleges that the false claims “could potentially be disastrous for consumers in certain situations, such as those driving, operating heavy machinery, or supervising children and/or important/dangerous operations.”

The complaint cites another risk of misleading consumers about the medicines: “Further exacerbating the deleterious drowsiness-inducing DXM effect is the fact that 9% of the population have been shown to be ‘poor metabolizers’ of DXM, which could cause DXM to build up even more[ ]heavily in their circulatory system.” If these consumers follow the package’s directions and take up to six doses of the medicine per day, the DXM may accumulate in their bodies and intensify the drowsy effects.

Consumers buy non-drowsy products, the complaint claims, specifically because they do not want to be impaired or unable to drive safely.

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