Class Action Alleges ‘Non-Drowsy’ Alka-Seltzer Cold Medicines Can Cause Drowsiness

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A proposed class action lawsuit claims that certain “non-drowsy” Alka-Seltzer cold and flu medicines have been falsely advertised in that they contain an ingredient known to cause drowsiness.

According to the 27-page case, the over-the-counter Alka-Seltzer products at issue contain the active ingredient dextromethorphan hydrobromide (DXM), a known side effect of which is drowsiness.

The suit alleges defendants Bayer Corporation, Bayer Healthcare LLC and Bayer Healthcare Pharmaceuticals Inc. have misled, and ultimately overcharged, consumers by labeling the Alka-Seltzer cold and flu medications as “non-drowsy” even though they contain DXM.

“Defendants labeled the products this way because they intended consumers to rely on these representations of ‘Non-Drowsy’ and to believe that the products would not cause drowsiness, so that consumers would buy more products or pay more for them,” the complaint contends.

Per the case, Bayer labels the Alka-Seltzer cold and flu products as “Day Non-Drowsy” and markets them as an alternative to medications that are meant to be taken at night.

Despite the packages’ labeling and consumers’ expectations, however, the Alka-Seltzer products, in fact, cause drowsiness since they contain DXM, the suit says. According to the complaint, studies have shown that drowsiness is a common side effect of DXM even at the recommended dosages. For this reason, the Federal Aviation Administration prohibits pilots from flying after taking medicines containing the ingredient, the suit adds.

The lawsuit stresses that whether a medication causes drowsiness is important to consumers, who in some situations may prefer over-the-counter items that will not make them drowsy. 

“For example, all else equal, a reasonable consumer would prefer to take a drug that does not cause drowsiness to one that does cause drowsiness during the day (or any periods of time when they plan to be awake),” the complaint states. “As a second example, if a consumer is planning to engage in activities that require them to be alert (like work), or during which they would prefer to be alert, that consumer would prefer to take a drug that does not cause drowsiness to one that does.”

The case argues that consumers who purchased the purportedly “non-drowsy” Alka-Seltzer products “did not get what they paid for” and instead received a medication that was worth less than the price they paid.

The specific products mentioned in the lawsuit include:

• Alka-Seltzer Plus – Severe Cold PowerFast Fizz Non-Drowsy Citrus Effervescent Tablets;
• Alka-Seltzer – Severe Cold PowerFast Fizz Day Non-Drowsy Citrus Effervescent Tablets;
• Alka-Seltzer Plus – Cold & Flu PowerMAX Gels Day Non-Drowsy;
• Alka-Seltzer Plus – Maximum Strength Cold & Flu Day Non-Drowsy Liquid Gels;
• Alka-Seltzer Plus – Cold Day Non-Drowsy Effervescent Tablets;
• Alka-Seltzer Plus – Severe Cold PowerFast Fizz Day Non-Drowsy Citrus Effervescent Tablets; Day/Night Severe Cold and Flu (combo pack); and
• Alka-Seltzer Plus – Cough, Mucus & Congestion PowerMAX Gels Day Non-Drowsy.

The lawsuit looks to represent anyone who purchased one of the products listed on this page in California, Illinois, Maryland, Hawaii, New York, Washington, D.C., Missouri, Washington or Connecticut.

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