CVS Falls Flat With Preemption Bid in ‘Non-Drowsy’ False-Ad Suit

CVS Pharmacy Inc. failed to convince a federal judge that federally approved labels for over-the-counter cold medicines preempt a consumer’s proposed class action alleging their “non-drowsy” labeling is deceptively advertised because they contain dextromethorphan.

“The applicable monograph neither requires nor forbids a ‘non-drowsy’ label on cough suppressants that contain DXM,” Judge Henry Edward Autrey of the US District Court for the Eastern District of Missouri said Wednesday.

Plaintiff Amy Newport alleged on behalf of a putative class that CVS misled consumers into believing the cold medicines were non-drowsy even though DXM has been proven to cause sleepiness. Other cold-medicine makers ...