If you purchased a CVS-brand cough and cold medicine or nasal decongestant containing phenylephrine, you may be entitled to up to $550 under applicable law.

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What’s Going On?

On September 11-12, 2023, the FDA held a Non-prescription Drug Advisory Committee meeting to discuss the effectiveness of oral phenylephrine, a common ingredient in cold medicines and nasal decongestants such as Sudafed, Dayquil, and similar private label products sold by drug stores.

The Committee concluded that “the current scientific data do not support that the recommended dosage of orally administered phenylephrine is effective as a nasal decongestant.” Despite this conclusion, retail stores continue to sell these drugs and present them to consumers as effective. Decongestants and cold medicines containing this ineffective compound racked up sales of almost $1.8 billion last year.

NBC News reports that the impact is expected to be significant, because consumers prefer pill and liquid-based cough medicines over nasal sprays.

Am I Affected?

If you purchased CVS-brand cold medicines and nasal decongestants that contain phenylephrine, you may have a claim for violation of consumer protection and false advertising laws against CVS.  The potential relief available for recovery for this kind of claim includes a refund of amounts paid and statutory damages up to $550 per violation.

Decongestant medicines stocked behind the pharmacy counter containing a different compound, pseudoephedrine, are not affected.

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Why Does CVS Sell Nasal Decongestants with Phenylephrine?

In 2006, the FDA started requiring medicines containing pseudoephedrine to be sold behind the pharmacy counter. State and local laws also limit the sale of pseudoephedrine because it can be used to make illegal methamphetamine (“meth”). As a result of restrictions relating to pseudoephedrine (the original Sudafed), drug manufacturers and retailers began selling medicines that contained phenylephrine in over-the-counter (OTC) products.

Am I Eligible to Submit a Claim?

If you purchased CVS-brand cold medicines or nasal decongestants that contain phenylephrine, you may have a claim for violation of consumer protection and false advertising laws against CVS.

Zimmerman Reed has led false advertising cases against corporations that violate state consumer laws for decades, and CVS Pharmacy is no exception. In this matter, Zimmerman Reed has partnered with another leading consumer rights firm, Pollock Cohen LLP – 111 Broadway, Suite 1804, New York, NY 10006. Together, we understand the frustration and disappointment that can result from deceptive marketing practices, and we are committed to helping you seek the compensation and justice you deserve.

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What is this Case About?

Together with Pollock Cohen LLP, we are representing CVS customers for consumer protection, false advertising law, and other legal violations resulting from the sale of products presented as effective decongestants. False advertising refers to the act of promoting a product, service, or business using deceptive or misleading information in order to deceive consumers. It involves making false claims or exaggerating the qualities or benefits of a product or service with the intention of enticing people to make a purchase or take some other desired action. Relevant examples for this case include:

  • False Claims: This involves making statements about a product or service that are factually incorrect. For example, claiming that a dietary supplement can cure a specific illness when it cannot.
  • Misleading Information: Providing information that, while technically true, is presented in a way that leads consumers to make incorrect assumptions. For example, advertising a product as “50% off” when the original price was artificially inflated.
  • Omission of Material Information: Sometimes, false advertising occurs when important information is omitted. This can include not disclosing potential side effects of a medication or hiding fees associated with a service.

Here, CVS failed to inform consumers that medicines containing phenylephrine at the recommended dosage are not actually effective in relieving nasal congestion, which is the primary reason people purchase these drugs.

What Legal Rights do I Have?

CVS requires all customers that visit its website or who have created a CVS ExtraCare account to agree to terms and conditions that require New York state law to be applied to any dispute. Under New York state law, you may be entitled to up to $550 per purchase for deceptive and misleading sales and advertising practices. Our law firms are here to help consumers interested in presenting such claims to recover compensation for their losses.

What Should I do Next?

  1. Take action – see if you qualify for compensation
  2. Provide basic details to ZR for review
  3. If your claim qualifies, ZR will submit your claim for compensation and keep you updated on next steps
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Results matter.

As a law firm, Zimmerman Reed is well positioned to successfully resolve your claim and obtain the compensation you deserve. Since 1983, we have taken on and won tough cases around the country. In the 1990’s, Zimmerman Reed worked with other law firms in what was known at the third wave of tobacco litigation that ultimately culminated in the 1998 Master Tobacco Settlement, which required tobacco companies to pay $206 billion to 52 U.S. states and territories.

Our firm recently helped secure a $400 million dollar settlement on behalf of farmers whose crops were harmed by volatile herbicides. Our firm has also led the way in data breach cases including the T-Mobile data breach which led to a $350 million settlement on behalf of 53 million T-Mobile customers and served as lead counsel in the Target data breach litigation which resulted in a $39 million settlement. We also served in leadership positions in data breach and privacy litigation involving Uber, Sony, Vizio, Home Depot, Wendy’s, Arby’s, and many others.

In the arbitration context, Zimmerman Reed has helped tens of thousands of consumers and workers obtain millions of dollars in compensation from the companies that violated their rights. Don’t take our word for it—read real reviews left by other Zimmerman Reed clients.

Pollock Cohen also has a strong record of advancing consumers’ rights in various types of litigation throughout the country and obtaining strong results for their clients. For more, visit www.pollockcohen.com.

What fees or costs do ZR and Pollock Cohen charge?

You will not be responsible for any fees or costs unless we obtain compensation for you. The firm will advance any costs to submit and resolve your claim, including any arbitration fees.

Ultimately, should you choose to settle your case, our firms would be entitled to a contingency fee based on the value of your settlement. The choice to accept a monetary settlement is yours and yours alone.