Target Up & Up “Non-Drowsy” Medicines Can Cause Drowsiness Class Action

Target has its own brand of medicine, Up & Up, under which it offers generic versions of popular drugs like DayQuil and Robitussin. The complaint alleges that some of these medicines contain dextromethorphan hydrobromide (DXM), which can cause drowsiness, but that Target sells them with the words “Non-Drowsy” displayed prominently on the front.

A class and two subclasses have been defined for this action.

• The Nationwide Class is all persons who bought a Non-Drowsy Up & Up product in the US during the applicable statute of limitations.
• The Consumer Protection Subclass is all persons in the Nationwide Class who live in California, Illinois, Maryland, Hawaii, New York, Washington, DC, Missouri, Rhode Island, Vermont, Washington, and Connecticut.
• The California Class is all persons in the Nationwide Class who bought the products in California.

Pages 3 and 4 of the complaint show images of three products:

• Up & Up Daytime Cold and Flu Multi-Symptom Relief Softgels
• Up & Up Daytime Cold and Flu Multi-Symptom Relief Liquid
• Up & Up Maximum Strength Cough + Chest Congestion DM Max

The complaint indicates the location of the “Non-Drowsy” claim on each package. The complaint contrasts this with another medicine, Up & Up Nighttime Cold & Flu, which claims to be for “nighttime relief” and which does not bear “Non-Drowsy” claims.

“In reality, however,” the complaint alleges, “the ‘Daytime’ version causes drowsiness.” This is because, the complaint claims, products that contain DXM “do cause drowsiness, and drowsiness is a documented side effect of DXM.”

The complaint refers to various sources that support this claim. “For example, one study found that ‘[s]omnolence is a common side effect of centrally acting antitussive drugs’ like dextromethorphan, and that 10.4% of users of products containing dextromethorphan develop drowsiness within three days of starting treatment with DXM cough medicine.”

The connection between DXM and drowsiness is well enough accepted that the Federal Aviation Administration forbids pilots from flying if they have taken a medicine that contains dextromethorphan, such as DayQuil.

Whether a medicine causes a person to feel sleepy is a material fact to a consumer. The complaint alleges, “Indeed, in many situations, taking a drug that does or can cause drowsiness can be dangerous. For example, taking a drug that causes drowsiness while driving is dangerous.”

The complaint asserts that Target “knew that its labeling was false and misleading, or was reckless and willfully blind to this fact.” According to the complaint, Target made the false statement to make its medicines more desirable and to allow it to charge more for the products.

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