CVS Cough Medicines Misleadingly Labeled as ‘Non-Drowsy,’ Class Action Claims

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A proposed class action claims over-the-counter CVS-brand cough medicines are misleadingly labeled in that the supposedly “non-drowsy” products contain an ingredient known to cause drowsiness.

The 23-page lawsuit alleges that although defendants CVS Health Corporation and CVS Pharmacy have marketed their store-brand versions of Robitussin, DayQuil, Tylenol and other brand-name cough medicines as non-drowsy, the medications in fact contain dextromethorphan hydrobromide (DXM), a common side effect of which is drowsiness.

“In this way, Defendants misled Plaintiff and other reasonable consumers about the effects of the Non-Drowsy CVS Products,” the complaint alleges. “This was a material misrepresentation that Plaintiff—and other reasonable consumers—relied on when deciding to buy the products.”

The lawsuit states that consumers purchase products labeled as non-drowsy for the specific purpose of avoiding drowsiness, particularly when engaged in activities for which they need to be alert, such as work or driving. As the suit tells it, CVS prominently labeled its cough medicines, namely its store-brand Health Tussin DM, Multi-Symptom Cold Relief, and Daytime Cold & Flu Relief medications, as “non-drowsy” with the intention for reasonable consumers to both rely on the items’ label claims and believe the products would not cause drowsiness.

“For example,” the suit says, “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 case alleges, however, that products contain DXM, of which drowsiness is a documented side effect even at recommended dosages. The case alleges that it is misleading to label a product as “non-drowsy” when it causes drowsiness or contains an active ingredient known to cause drowsiness. According to the suit, it is not disclosed anywhere on CVS cough medicine packaging or labels that the medications cause drowsiness.

The lawsuit claims reasonable consumers would not have purchased CVS’s purportedly “non-drowsy” cough medicines, or would have paid less for them, had they known the products would cause drowsiness.

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