Vicks Severe Cold & Flu Max Strength Mislabeled, Suit Claims

Proctor & Gamble’s Vicks DayQuil Severe Cold & Flu and Vicks NyQuil Severe Cold & Flu labeled as “Max Strength” are misleading because similar products with stronger, more effective ingredients are available over the counter, allege Milberg class action attorneys in a recently filed lawsuit.

The class action lawsuit seeks damages for violations of state consumer protection laws and unjust enrichment. Anyone who purchased these products may be eligible to join the lawsuit and receive compensation.

About the Products

Proctor & Gamble is one of the largest drug manufacturers in the world and sells several OTC medications, including those in the “Vicks” branded line of products.

Vicks DayQuil Severe Cold & Flu and Vicks NyQuil Severe Cold and Flu are marketed as providing multi-symptom relief of headache, fever, sore throat, minor aches and pains, cough, nasal congestion, and sinus pressure.

Both formulations contain the active ingredients acetaminophen (pain reliever; 325 mg), dextromethorphan (cough suppressant; 10 mg), and phenylephrine (nasal decongestant; 5mg). Each product also prominently proclaims “MAX STRENGTH” in capitalized green font set against a yellow background at the top front of the package.

The market size of U.S. cough and cold medicine market was $11 billion in 2022, a 7.8% increase over the prior year. During Winter 2022, Amazon and Google searches for cold and flu medicine exploded. Amazon searches for “NyQuil” increased 259% while “DayQuil” searches surged 490%. Around this time Google searches for these products also reached three-year highs.

Lawsuit Disputes “Max Strength” Claims

Booming interest in cold and flu products during the COVID-19 era creates a competitive marketplace in which major players like P&G, GlaxoSmithKline, Reckitt Benckiser, Pfizer, and Johnson & Johnson vie for consumers’ attention.

Milberg’s class action complaint notes that, “When consumers purchase decongestants and pain relief pills, the strength of the ingredients are important purchasing considerations, especially for consumers seeking a ‘MAX STRENGTH’ product.”

But in the case of Vicks DayQuil Severe Cold & Flu and Vicks NyQuil Severe Cold & Flu, shoppers may be mislead by “MAX STRENGTH” claims for two reasons:

• The active nasal decongestant ingredient in the products, phenylephrine hydrochloride, is not as strong as other decongestants available without a prescription. This conclusion is based on studies and a recent FDA advisory committee finding that phenylephrine is no more effective than a placebo
• The 325 mg dose of acetaminophen per LiquiCap is only regular strength and well below the dosage available from other over-the-counter medicines.

Lead plaintiff Mohamad Tlaib says he relied on the “MAX STRENGTH” label when purchasing Vicks NyQuil Severe Cold and Flu and would not have purchased it had he known about P&G’s labeling and marketing misrepresentations.

Despite marketing these Products as “MAX STRENGTH,” P&G knew the active nasal decongestant ingredient, phenylephrine hydrochloride, was not as strong as other decongestants available without a prescription. Additionally, the Vicks PE Products do not even contain the maximum dosage of acetaminophen, and are thus not deserving of the “MAX STRENGTH” label and representation.

Plaintiff accuses P&G of unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, the Illinois Uniform Deceptive Trade Practices Act, and other state consumer protection laws. His action asserts the following defined classes of consumers who purchased Vicks DayQuil Severe Cold & Flu or Vicks NyQuil Severe Cold & Flu during the applicable statute of limitations period:

• Nationwide Class: All persons in the United States who purchased the products in the United States for personal use and not for resale.
• Multi-State Consumer Protection Class: All persons who purchased the products in the State of Illinois or any state with similar laws for personal use and not for resale.
• Illinois Subclass: All persons in the State of Illinois who purchased the products in the State of Illinois for personal use and not for resale.

Milberg attorneys Jimmy Mintz, Karl J. Amelchenko, J. Hunter Bryson, Erin J. Ruben, Gary M. Klinger, and Nick Suciu III are representing the class.

The Vicks Cold & Flu lawsuit raises phenylephrine hydrochloride and acetaminophen-related mislabeling issues similar to those in the firm’s Sudafed PE class action lawsuit.

Since 1965, Milberg has filed thousands of class action lawsuits, recovered billions of dollars for our clients, set groundbreaking legal precedents, and prompted meaningful changes in how big companies do business.