Walgreens is embroiled in a class action lawsuit alleging deceptive advertising of its home-brand cold and flu medications. The lawsuit, spearheaded by plaintiff Tracy Hall, contends that despite being marketed as "non-drowsy," these products contain an active ingredient, dextromethorphan hydrobromide (DXM), known to cause drowsiness.

The Washington Supreme Court recently delivered a significant blow to Walgreens' defense, ruling that the pharmacy giant cannot utilize a "safe harbor provision" within the Washington Consumer Protection Act to shield itself from these claims. This decision allows the lawsuit to proceed, with the central argument being that the Food and Drug Administration (FDA) has not explicitly permitted over-the-counter medicines containing DXM to be labeled as non-drowsy. The justices sided with Hall's assertion that without this specific FDA authorization, the safe harbor provision does not apply.

Filed in Illinois federal court, the class action asserts that Walgreens has engaged in breach of warranty and violated consumer protection laws through the misleading marketing of its "non-drowsy" products. Hall claims that she purchased Walgreens' WalTussin DM in 2019, relying on the "non-drowsy" label. However, she experienced unexpected drowsiness after taking the medication.

According to the lawsuit, a well-established and scientifically validated side effect of DXM is drowsiness. The claim even highlights that pilots are prohibited from taking medications containing this ingredient before flying due to this very risk. Hall states that had she been aware of the potential for drowsiness, she would not have purchased the Walgreens product.

The lawsuit emphasizes that the Walgreens' cold and flu products in question prominently feature "non-drowsy" on their front labels but fail to disclose anywhere that drowsiness is a potential side effect. Hall argues that this labeling strategy is a deliberate tactic by Walgreens to mislead consumers into believing the products will not cause drowsiness, thereby encouraging more purchases and potentially allowing the company to charge a premium.

Supporting her claims, the class action cites a study indicating that DXM can induce drowsiness even at dosages lower than those recommended by Walgreens. Furthermore, the lawsuit points to the FDA's adverse event report database, which allegedly lists "sedation" as a frequently reported side effect associated with products containing dextromethorphan.

Hall seeks to represent a nationwide class of consumers who purchased these Walgreens "non-drowsy" products and experienced drowsiness. The lawsuit demands damages, restitution, disgorgement of profits, interest, legal fees, and costs, as well as a jury trial to resolve the allegations.

Interestingly, Walgreens is not the only pharmaceutical company facing similar legal challenges regarding the "non-drowsy" labeling of DXM-containing products. Earlier this month, Procter & Gamble, the maker of DayQuil, was also hit with a class action lawsuit making similar claims of deceptive advertising.