Walmart escapes class action over 'non-drowsy' cough syrup claim

A Walmart sign is pictured at one of their stores in Mexico City, Mexico March 28, 2019. REUTERS/Edgard Garrido/File Photo
  • Preemption, lack of standing doom New York woman's claims, judge finds
  • Similar lawsuits against other companies are pending

(Reuters) - Walmart Inc has escaped a proposed class action lawsuit accusing it of falsely marketing store-brand cough syrup as "non-drowsy."

U.S. District Judge Lewis Liman in Manhattan ruled Friday that plaintiff Aileen Goldstein's claims for economic damages were blocked by federal drug law, and that she had no standing to ask for a court order against Walmart's marketing because she was not likely to be injured by it in the future.

Lawyers for Goldstein and Walmart did not immediately respond to requests for comment.

Goldstein alleged in her 2022 lawsuit that she became drowsy after taking an Equate-brand cough syrup containing the active ingredient dextromethorphan hydrobromide (DXM), despite the label promising it was non-drowsy. She said DXM, which is also found in the brand-name Robitussin cough syrup, is in fact known to cause drowsiness in some people.

Goldstein, seeking to represent a nationwide class, brought claims under the federal Magnuson-Moss Warranty Act and various state consumer protection laws. She sought money damages, saying she would not have bought the product without the false claim, and an order prohibiting the allegedly misleading marketing.

Walmart, moving to dismiss, argued that claims were preempted by the federal Food, Drug and Cosmetic Act (FDCA), which gives the U.S. Food and Drug Administration authority to regulate drugs. It also said Goldstein had no standing to ask for an injunction because, now that she no longer trusts the "non-drowsy" representation, she will not be harmed by it again.

Liman agreed on both counts. He said that, while the FDA had not explicitly approved the "non-drowsy" representation, it did require drowsiness to be disclosed as a side effect of some drugs, but not of DXM.

The FDCA explicitly preempts many state law claims related to over-the-counter drugs, but makes an exception for product liability claims. However, Liman said that exception did not apply to Goldstein's claims because they alleged only economic loss, not personal injury.

Liman rejected Goldstein's argument that she will suffer future harm because she can no longer rely on labels, entitling her to an injunction. Now that she knows she cannot rely on labels, he said, the labels are "immaterial to her future decisions to purchase the product."

Goldstein's case is one of a number of similar proposed class actions filed around the country against companies including Walgreens Boots Alliance Inc, Rite Aid Corp and brand-name Robitussin maker GlaxoSmithKline Plc over their marketing of DXM-containing cough syrup as non-drowsy. Some of these claims have been dismissed, but others remain pending.

The case is Goldstein v. Walmart Inc, U.S. District Court for the Southern District of New York, No. 1:22-cv-00088.

For Goldstein: Simon Franzini and Jonas Jacobson of Dovel & Luner

For Walmart: Kevin Underhill and Emily Weissenberger of Shook, Hardy & Bacon

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at