Drugmakers, retailers must face 'maximum strength' claim in decongestant false ad litigation in US

Thursday's decision also said consumers lacked standing to pursue a civil racketeering claim accusing the defendants of defrauding the public and the FDA.

Jonathan Selbin, a lawyer for the consumers, said they were "obviously disappointed" with parts of the decision and reviewing their next steps.

"For over a decade these manufacturers made billions of dollars selling products with a decongestant that they long knew — in many cases based on their own studies — was entirely ineffective at decongesting," he said. "This case is far from over."

Procter & Gamble makes Vicks NyQuil Severe Cold & Flu, while Haleon makes Advil Sinus Congestion & Pain. Some of the other defendants included Bayer, GSK, Kenvue, Costco, Target, Walgreens and Walmart, as well as CVS.

The appeals court returned the litigation to U.S. District Judge Brian Cogan in Brooklyn, who dismissed it in October 2024.