GSK’s consumer wing nears settlement of ‘non-drowsy’ marketing lawsuit

A marketing lawsuit against GlaxoSmithKline Consumer Healthcare is nearing a resolution, with the two sides agreeing in principle to a classwide settlement of allegations of deceptive marketing of Robitussin cough medicines, according to Bloomberg Law.

The case focuses on whether the products can be sold as “non-drowsy.” Nancy Calchi filed a suit against GlaxoSmithKline Consumer Healthcare Holdings in Feb. 2022. The suit, which Calchi filed alongside a similar case against TopCo Associates, was quickly followed by a case that Stacey Papalia brought against GSK’s consumer wing. Plaintiffs went after Rite Aid around the same time that Calchi filed her cases. 

As Papalia’s lawsuit explained, the cases centered on the marketing of cough suppressants that contain dextromethorphan (DXM) as “non-drowsy.” The lawsuit alleged that labeling Robitussin DXM products as non-drowsy “is demonstrably false and misleading because it is widely acknowledged by medical experts studying coughs that DXM can cause drowsiness.” 

Papalia claimed GSK is “well-aware that DXM can cause drowsiness because it is prohibited from making the same ‘non-drowsy’ claim in the United Kingdom.” The U.K. label for a dextromethorphan-based cough medicine sold by Haleon, the new name for GSK’s consumer wing, lists dizziness and drowsiness as rare undesirable effects and cautions that the product “is likely to affect your ability to drive.”

A court previously dismissed Calchi and Papalia’s case on the grounds it was preempted by federal regulations on over-the-counter drug labeling. The plaintiffs appealed. As the case advanced through a second court, the plaintiffs and GSK asked the judge to pause the appeal because of the potential deal to settle the case.

Haleon identified the cough brand as a growth driver on a call with investors early this month, when chief financial officer Tobias Hestler said “respiratory revenue was up 4% with strong growth in Theraflu and Robitussin from selling ahead of the cold and flu season, which more than offset both the lower out-of-season use of cold and flu products and a decline in Flonase following a weak allergy season.”