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Dovel & Luner Sues TopCo for Deceptive Advertising

Press Release

February 11, 2022 — SANTA MONICA – The Dovel & Luner law firm on Thursday filed a federal class action lawsuit against TopCo Associates, LLC on behalf of a New York consumer who purchased “Non-Drowsy” TopCare medication.  Calchi v. TopCo Associates, LLC, Case 1:22-cv-00747 (N.D. Illinois Dkt. 1).   The lawsuit alleges that TopCo misled millions of consumers by deceptively labeling its TopCare products as “Non-Drowsy,” even though the products do cause drowsiness.

The Complaint, filed in the United States District Court for the Northern District of Illinois, alleges that TopCo violated the consumer protection laws of many states, including New York’s General Business Laws § 349 and 350.  

TopCo prominently labels many of its TopCare medications as “Non-Drowsy.”  According to the lawsuit, a reasonable consumer would understand TopCo’s advertisements and packaging to mean that these products do not cause drowsiness.  Here is an example of TopCo’s packaging for its TopCare Daytime Cold & Flu Relief Softgels, which advertises that the product is “Non-Drowsy”: 

In reality, however, the lawsuit claims, these “Non-Drowsy” TopCare products contain Dextromethorphan Hydrobromide (DXM), an ingredient known to cause drowsiness.  In fact, according to the lawsuit, the FDA’s database shows that “sedation…is one of the most frequently-cited side effects of DXM-containing products,” and the Federal Aviation Administration prohibits pilots from flying after taking medication containing DXM.   

Whether or not an over-the-counter medication causes drowsiness, the lawsuit alleges, is important to consumers. By claiming that their products are “Non-Drowsy,” TopCo led consumers to believe that their products “can be safely and satisfactorily consumed during waking hours, at work, and while driving and operating machinery,” the lawsuit claims.  

According to the lawsuit, TopCo’s “false statements increased the demand for Non-Drowsy TopCare Products and allowed [TopCo] to charge a price premium.”  The lawsuit seeks to enjoin TopCo from continuing to engage in deceptive advertising and to require that it compensate harmed consumers.

“Consumers should be able to rely on the labels placed on over the counter medicines,” said Simon Franzini of Dovel & Luner.  “Claiming that a medicine that causes drowsiness is ‘Non-Drowsy’ is deceptive—and dangerous.”

Simon Franzini
Dovel & Luner
SOURCE Dovel & Luner, LLP

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