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Dovel & Luner Defeats Rite Aid’s Motion to Dismiss Consumer Protection Lawsuit

Press Release

July 12, 2022 — SANTA MONICA – Dovel & Luner, a litigation boutique law firm, on Thursday received a favorable decision on a motion to dismiss in Lemus v. Rite Aid Corporation, Case 8:22-cv-00253 (C.D. Cal.), a class action against Rite Aid Corporation. The lawsuit alleges that Rite Aid misled consumers by deceptively labeling its over-the-counter cough medicine products as “Non-Drowsy,” even though the products actually cause drowsiness.

In the decision, Judge Carter of the Central District of California held that the lawsuit, which asserts state law consumer protection and common law claims, was not preempted by federal law: “Because the FDA has not expressly approved the use of the phrase ‘Non-Drowsy’ on products containing DXM, and Plaintiff has plausibly alleged that DXM may cause drowsiness as described below,  Plaintiff’s has properly alleged that Defendant’s labelling of the Medication was misleading.  Thus, Plaintiff’s claims are not preempted and Defendant’s Motion is DENIED with respect to preemption.”

Judge Carter also rejected the Rite Aid’s argument that the claims in the lawsuit are implausible: “Plaintiff has plausibly alleged that a reasonable consumer would interpret ‘Non-Drowsy’ to mean that the Medication would not cause drowsiness.”

“We are pleased with the Court’s decision,” said Simon Franzini of Dovel & Luner.  “We look forward to continuing to pursue these meritorious claims on behalf of consumers who were deceived by Rite-Aid’s labeling.”


Simon Franzini

Dovel & Luner

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