CHARLESTON — A lawsuit has been filed against several retailers alleging their cold medicines were essentially placebos and did not contain the proper ingredients to combat the symptoms listed on them.
Bethany Childers, the plaintiff in the case, filed a class action lawsuit against multiple defendants regarding their marketing, sale and distribution of allergy, cold and flu products containing the ingredient phenylephrine, which the defendants claim is an active decongestant, according to a complaint filed March 23 in U.S. District Court for the Southern District of West Virginia.
The U.S. Food and Drug Administration (FDA) unanimously found that phenylephrine, as claimed by the defendants, is actually wholly ineffective as a decongestant when taken orally.
Webb
Rusty Webb of the Webb Law Centre, is representing Childers. He said the drug in the cold medicines was essentially a placebo.
"A variety of cold products were sold by a variety of manufacturers and retailers representing that they had a cold medicine ingredient in them when in fact they didn’t," Webb said in an interview with The West Virginia Record. "They were basically placebos. They had no medical use whatsoever."
Webb said there are two classes in the class action.
"We sued them in a class action for all those affected in West Virginia," Webb said. "Then, everyone in the country who was defrauded by buying these over-the-counter cough medicines."
Webb said while the case has been assigned to Judge John Thomas Copenhaver Jr., he believes it will eventually be transferred to a multi-district litigation panel in one of the districts in New York.
Phenylephrine is found in at least 250 products, including defendants' items like Family Wellness Daytime Cold & Flu relief, Walgreens Immediate Release Sinus Congestion Mucus Relief PE, Walgreens Severe Cold and Flu, DG Health Allergy Plus Sinus Headache and Equate Severe Sinus Congestion & Pain.
Despite knowing that oral phenylephrine is ineffective, the defendants continued to manufacture, promote, market, sell and distribute these products, which millions of Americans purchased to treat symptoms that the defendants knew phenylephrine couldn't effectively treat.
The lawsuit alleges that the defendants' representations of oral phenylephrine's effectiveness were false and misleading.
The plaintiff claims that these practices were fraudulent, unlawful, against public policy, unscrupulous and unfair to consumers.
As a result of the defendants' actions, the plaintiff and class members suffered substantial damages.
In September 2023, the FDA voted 16-0, finding that scientific data does not support the effectiveness of orally administered phenylephrine as a nasal decongestant.
The FDA advisory panel recommended that phenylephrine drugs should not be sold due to this lack of efficacy.
The defendants' labeling of these over-the-counter medications, claiming they are effective at treating congestion, is alleged to be misleading and fraudulent, according to the suit.
For instance, Family Dollar LLC claimed its Family Wellness Daytime Cold & Flu relief product contained a "nasal decongestant," while Walgreens Co. claimed its Walgreens Immediate Release Sinus Congestion Mucus Relief PE product treated "nasal & sinus congestion" and Walgreens, Co. claimed its Severe Cold and Flu product treated "nasal/sinus congestion."
DolgenCorp and Walmart similarly marketed their products containing phenylephrine as effective for nasal congestion, despite knowing or should have known that the drug was ineffective for this purpose.
The lawsuit alleges that the defendants' misrepresentations, concealments, omissions and suppressions of material facts regarding products containing phenylephrine were material to the decisions of the plaintiff and class members to purchase these products.
The plaintiff and class members reasonably accepted the defendants' statements and marketing as true, not being able to discern that they were false or misleading.
If they had known the truth, they would not have purchased these products or would have paid significantly less, the complaint states.
The deceptive practices of the defendants have resulted in economic injury and loss for the plaintiff and class members, either by purchasing products they wouldn't have bought otherwise or paying more due to the defendants' actions and omissions.
The plaintiff is seeking class certification and compensatory and punitive damages with pre- and post-judgment interest. She is represented by Webb, W. Daniel "Dee" Miles III, Alison D. Hawthorne and Demet Basar of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.; and Rebecca D. Gilliland and Jessica M. Haynes of Beasley, Allen, Crow, Methvin, Portis & Miles in Mobile, Ala.
Webb is seeking class certification for all consumers in West Virginia and the entire United States.
U.S. District Court for the Southern District of West Virginia case number: 2:24-cv-00148