Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`ROCHESTER DIVISION
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`Patricia Donadio, individually and on behalf of
`all others similarly situated,
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`6:22-cv-06521
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`Bayer Healthcare LLC,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges on information and belief, except for allegations about Plaintiff, which are
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`based on personal knowledge:
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`1.
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`Bayer Healthcare LLC (“Defendant”) manufactures, markets, labels and sells mix-in
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`powder packets under the Alka-Seltzer Plus brand promoted as for “Severe Cold & Flu” to be used
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`in the evenings and containing “Honey [and] Lemon Zest” (“Product”).
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`
`ROCHESTER DIVISION
`
`Patricia Donadio, individually and on behalf of
`all others similarly situated,
`
`6:22-cv-06521
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Bayer Healthcare LLC,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges on information and belief, except for allegations about Plaintiff, which are
`
`based on personal knowledge:
`
`1.
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`Bayer Healthcare LLC (“Defendant”) manufactures, markets, labels and sells mix-in
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`powder packets under the Alka-Seltzer Plus brand promoted as for “Severe Cold & Flu” to be used
`
`in the evenings and containing “Honey [and] Lemon Zest” (“Product”).
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 2 of 10
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`2.
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`The label describes the Product as suitable to be consumed at night for a “Severe
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`Cold & Flu,” identifying the relevant symptoms as “Nasal Congestion,” “Headache,” “Sore
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`Throat,” “Body Ache,” “Cough,” “Runny Nose” and “Fever,” while disclosing its active
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`ingredients and their functions.
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`I.
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`CONSUMER INTEREST IN MORE NATURAL MEDICINES
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`3.
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`Recent studies indicate that consumers are increasingly purchasing nontraditional
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`over-the-counter (“OTC”) medications when it comes to relief for colds and coughs.
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`4.
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`This is confirmed by the growth in the market for natural and homeopathic OTC
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`products, expected to reach $4.5 billion by 2024 from $3.1 billion this year.
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`5.
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`Some of the larger companies in this space include Zarbee’s Naturals, recently
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`bought by Johnson & Johnson, and Hyland’s.
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`6.
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`7.
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`The reasons for this shift are several.
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`First, according to a consumer survey by Mintel, 37% of respondents said traditional
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`OTC products posed safety risks and could cause unwanted side effects.
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`8.
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`Second, almost 60% believed natural ingredients in this emerging class of products
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`are equally, if not more effective, in treating cold and coughs.
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`9.
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`Third, younger purchasers are more likely to seek OTC products without long and
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`complicated lists of ingredients, including synthetic components and additives.
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`10. Fourth, many OTC purchasers believe traditional products merely suppress
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`symptoms, while natural and homeopathic varieties work in concert with the body’s healing
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`mechanisms.
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`11. Fifth, the coronavirus pandemic has made consumers more future-oriented in terms
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`of the cold and cough OTC products they are seeking, and desire products which emphasize an
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 3 of 10
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`immune support component.
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`12. Notwithstanding the front label disclosure of the active ingredients, the labeling
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`appeals to consumers seeking more natural OTC products, through the wedge of fresh lemon and
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`a dripping honey dipper, described as “Honey [and] Lemon Zest,” next to a cup of steaming tea.
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`13. Based on the labeling, consumers will expect the Product contains honey and lemon
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`ingredients, in the form of “honey” and “lemon zest,” the outermost layer of the peel and that these
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`ingredients provide some therapeutic benefit in addition to the identified active ingredients.
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`14. However, the active and inactive ingredient lists reveal the absence of honey and
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`lemon zest.
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` Active ingredients (in each packet) Purposes
` Acetaminophen 650 mg……………..………..…..…...Pain reliever/fever reducer
` Dextromethorphan hydrobromide 20 mg……………….…… .Cough suppressant
` Doxylamine succinate 12.5 mg……………..…………………........Antihistamine
` Phenylephrine hydrochloride 10 mg....……….….…………....Nasal decongestant
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`Inactive ingredients acesulfame potassium, anhydrous
`citric acid, compressible sugar, D&C yellow #10, dental-
`type silica, FD&C red #40, flavors, pregelatinized
`starch, sodium citrate, sucralose, tartaric acid, tribasic
`calcium phosphate
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`15. Nevertheless, despite the recent growth in the OTC natural products category, no
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`credible evidence or studies support the notion that either honey or lemon are effective in treating
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 4 of 10
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`or reducing the severity and duration of colds, coughs, and the other symptoms identified.
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`16. Though consumers increasingly seek immunity benefits from OTC products and look
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`for the presence of added vitamin C, no evidence or studies support a connection between vitamin
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`C and immunity.
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`17. While the label does not explicitly promote added vitamin C, consumers viewing the
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`lemon wedge and reading “Lemon Zest” will understand these references as implying the Product
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`contains vitamin C which will improve their health and immunity.
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`18. As a result of the false and misleading representations, the Product is sold for a
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`premium price of not less than $8.99 for six packets, excluding tax and sales, a higher price than
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`it would otherwise be sold for, absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`19.
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`Jurisdiction is pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C.
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`§ 1332(d)(2).
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`20. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`21. Plaintiff is a citizen of New York.
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`22. Defendant is a Delaware limited liability company with a principal place of business
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`in Whippany, New Jersey, Morris County.
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`23. The member of Defendant is Bayer Corporation, an Indiana corporation with a
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`principal place of business in Pittsburgh, Pennsylvania, Allegheny County.
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`24. Defendant is a citizen of Indiana and Pennsylvania.
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`25. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen.
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 5 of 10
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`26. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold for several years with the representations described here, from thousands of
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`locations including grocery stores, big box stores, drug stores, convenience stores, club stores and
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`online, across the States covered by Plaintiff’s proposed classes.
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`27. Venue is in this District with assignment to the Rochester Division because a
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`substantial part of the events or omissions giving rise to these claims occurred in Ontario County,
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`including Plaintiff’s purchase and/or use of the Product and awareness and/or experiences of and
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`with the issues described here.
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`Parties
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`28. Plaintiff Patricia Donadio is a citizen of Farmington, Ontario County, New York.
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`29. Defendant Bayer Healthcare LLC is a Delaware limited liability company with a
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`principal place of business in Whippany, New Jersey, Morris County.
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`30. Defendant manufactures products under the Alka-Seltzer brand, one of the most
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`well-known and respected names in the OTC industry.
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`31. Plaintiff purchased the Product at locations including Walmart, 441 Commerce Dr,
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`Victor, NY 14564, between November 2021 and November 2022, among other times.
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`32. Plaintiff read the words on the front label including honey and lemon zest and saw
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`the images and believed the Product contained honey and lemon ingredients and that these
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`provided a therapeutic benefit in addition to the identified active ingredients.
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`33. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
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`packaging, and/or images on the Product, on the labeling, statements, omissions, claims,
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`statements, and instructions, made by Defendant or at its directions, in digital, print and/or social
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`media, which accompanied the Product and separately, through in-store, digital, audio, and print
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 6 of 10
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`marketing.
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`34. Plaintiff bought the Product at or exceeding the above-referenced price.
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`35. Plaintiff paid more for the Product than she would have had she known the
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`representations and omissions were false and misleading, or would not have purchased it.
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`36. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`Class Allegations
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`37. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`New York Class: All persons in the State of New
`York who purchased the Product during the statutes
`of limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Iowa, Kansas, New Mexico, Utah,
`Idaho, North Dakota, West Virginia, Texas,
`Montana, Mississippi and Arkansas who purchased
`the Product during the statutes of limitations for each
`cause of action alleged.
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`38. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`39. Plaintiff’s claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`40. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`41. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`42.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 7 of 10
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`to justify, as the claims are modest relative to the scope of the harm.
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`43. Plaintiff’s counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`New York General Business Law (“GBL”) §§ 349 and 350
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`44. Plaintiff incorporates by reference all preceding paragraphs.
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`45. Plaintiff believed the Product contained honey and lemon ingredients and that these
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`provided a therapeutic benefit in addition to the identified active ingredients.
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`46. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`47. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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` Violation of State Consumer Fraud Acts
` (Consumer Fraud Multi-State Class)
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`48. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`49. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`50. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct, which they did, suffering damages.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`51. The Product was manufactured, identified, marketed and sold by Defendant and
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 8 of 10
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`expressly and impliedly warranted to Plaintiff that it contained honey and lemon ingredients and
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`that these provided a therapeutic benefit in addition to the identified active ingredients.
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`52. Defendant directly marketed the Product to Plaintiff through its advertisements and
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`marketing, through various forms of media, on the packaging, in print circulars, direct mail,
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`product descriptions distributed to resellers, and targeted digital advertising.
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`53. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires, a
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`product containing honey and lemon ingredients and that these provided a therapeutic benefit in
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`addition to the identified active ingredients.
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`54. Defendant’s representations were conveyed in writing and promised the Product
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`would be defect-free, and Plaintiff understood this meant it contained honey and lemon ingredients
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`and that these provided a therapeutic benefit in addition to the identified active ingredients.
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`55. Defendant’s representations affirmed and promised that the Product contained honey
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`and lemon ingredients and that these provided a therapeutic benefit in addition to the identified
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`active ingredients.
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`56. Defendant described the Product as containing honey and lemon ingredients and that
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`these ingredients provided a therapeutic benefit in addition to the identified active ingredients,
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`which became part of the basis of the bargain that it would conform to its affirmations and
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`promises.
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`57. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`58. This duty is based on Defendant’s outsized role in the market for OTC products, as
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`custodian of the recognized and trusted Alka-Seltzer brand.
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 9 of 10
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`59. Plaintiff recently became aware of the Product’s breach of its warranties, and has
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`provided or provides notice to Defendant, its agents, representatives, retailers, and their employees
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`of this breach.
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`60. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`61. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions, as it did not contain honey and lemon ingredients nor could such ingredients
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`provide any therapeutic benefit.
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`62. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to its
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`promises or affirmations of fact made on the packaging, container or label, because it was marketed
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`as if it contained honey and lemon ingredients and that these provided a therapeutic benefit in
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`addition to the identified active ingredients.
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`63. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which it was bought by Plaintiff, because she expected it contained honey
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`and lemon ingredients and that these provided a therapeutic benefit in addition to the identified
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`active ingredients, and she relied on Defendant’s skill and judgment to select or furnish such a
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`suitable product.
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`Fraud
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`64. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained honey and lemon ingredients, and that these provided a therapeutic benefit in
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`addition to the identified active ingredients.
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`Case 6:22-cv-06521 Document 1 Filed 11/21/22 Page 10 of 10
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`65. However, the Product did not contain honey or lemon ingredients, and no credible
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`evidence supports a connection of either to the identified symptoms and with enhancing immunity.
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`Unjust Enrichment
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`66. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying Plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Awarding monetary, statutory and/or punitive damages and interest;
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`3. Awarding costs and expenses, including reasonable fees for Plaintiff’s attorneys and
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`experts; and
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`4. Other and further relief as the Court deems just and proper.
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`Dated: November 21, 2022
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`Respectfully submitted,
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`/s/ Spencer Sheehan
`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`(516) 268-7080
`spencer@spencersheehan.com
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`10
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