A few months ago, in the midst of cold and flu season, we blogged about a consumer class action filed against Bayer Healthcare over its Alka-Seltzer brand over-the-counter severe cold medication. The consumer charged the company with falsely claiming on its label, by the words “Honey Lemon Zest” and related images, that the product contains honey and lemon, when its ingredients list says otherwise. 

As we ditch the cold and flu medicines and welcome spring, it now appears that a U.S. district judge has decided to grant Bayer’s motion to dismiss, finding that the phrase “Honey Lemon Zest” is a clear reference to the flavor of the product – and not its individual ingredients. 

The product was labeled as containing “Honey Lemon Zest,” and featured images of a “wedge of fresh lemon” and a “dripping honey dipper” next to a “steaming cup of tea.” The Plaintiff claimed that this would cause consumers to understand the product as containing honey and lemon ingredients, which are typically expected to provide some therapeutic benefit. Additionally, the Plaintiff stated that there is a growing demand among consumers for OTC products based on “natural ingredients” which are believed to be effective in treating colds and coughs, and that Bayer therefore deceived customers interested in these kinds of products with its packaging. 

Bayer argued that no reasonable consumer could conclude from the packaging that the product contained honey and lemon “beyond a de minimis amount.” Reading the active ingredients list on the front of the product’s package, Bayer said, would indicate that “Honey and Lemon Zest” refers to the medicine’s flavor. Further, the order states that no reasonable consumer could believe that the Product is made from “natural ingredients.” The front label makes no such claims, and it in fact discloses ingredients contained in the Product such as acetaminophen, doxylamine succinate, and others.

The order states, “In this case, a reasonable consumer would not understand the phrase “Honey Lemon Zest” and pictures of a lemon wedge and a honey dipper, on a visually and spatially distinct section of the package from the active ingredient list, to indicate that honey or lemon are present in the medication in non de minimis amounts. Instead, a reasonable consumer would understand that the phrase “Honey Lemon Zest”—which is not itself the name of an ingredient found in nature— refers to the flavor of the medication.”

Patricia Donadio v. Bayer Healthcare LLC, case number 6:22-CV-06521, in the U.S. District Court for the Western District of New York