California residents have filed a class action lawsuit against Walmart, claiming that the company has falsely marketed over-the-counter remedies for years as effective treatments for cold congestion, even though products contained phenlyephrine, an active agreement that has been determined to be ineffective by the U.S. Food and Drug Administration.
Plaintiffs Emily Hansen, Sommer Milhous and Andrew Gutierrez filed a class action lawsuit in San Francisco federal court against Walmart Inc., citing allegations of violations of the California Unfair Competition Law (UCL), the California False Advertising Law and the California Consumer Legal Remedies Act, breach of express and implied warranty, unjust enrichment, and fraudulent and negligent misrepresentation.
According to court documents, the plaintiffs claim that they have purchased numerous products branded as Equate, Walmart's in-house over-the-counter drug brand, at California Walmart stores for relief from congestion symptoms. They claim that despite being marketed and advertised as effective remedies for congestion, the products did not work as advertised.
According to the lawsuit, the primary active ingredient in the Equate products is phenylephrine hydrochloride (PE), and the lawsuit claims that "no support has been found in the literature in the public domain for the efficacy of PE as a nasal decongestant when administered orally.”
The lawsuit states that another ingredient found in OTC cold and cough medicines is pseudoephedrine hydrochloride (PDE), which has been proven effective. According to the lawsuit, PDE is also an ingredient in the production of illegal methamphetamine. As a result, the sale of medications containing PDE has been limited to behind-the-counter, and individuals are limited to how much they can purchase each month and must present identification to purchase products containing PDE. This primary ingredient is not found in Equate products.
The lawsuit adds that while the FDA has designated pheylephrine as "generally recognized as safe and effective," in 2007, the FDA issued a report detailing the ineffectiveness of oral PE as an active ingredient in cold products. On Sept. 11, 2023, the FDA revisited this study and concluded that scientific data does not support the designation of PE as an ingredient in cough and cold medicines.
The plaintiffs claim that, as a result of these studies, Walmart should have known that its claims that the OTC products containing PE as effective treatments for decongestion were misleading and false.
The plaintiffs are requesting that their class action lawsuit be certified and are demanding a jury trial to seek damages for themselves and everyone in the proposed class action lawsuit, plus interest, attorney fees, court costs and any other relief the court deems proper. They are represented in this case by attorneys William A. Kershaw, of Kershaw Talley Barlow P.C., in Sacramento; and George M. Fleming and Rand P. Nolen, of Fleming, Nolen & Jez LLP, in Houston.
U.S. District Court for the Northern District of California case number 3:23-cv-05466