New class action claims cold and flu meds were ‘ineffective’

Thursday, 13 February 2025

After the decongestant pseudoephedrine was removed, phenylephrine was added to products such as Codral Cold & Flu and Sudafed PE as a substitute.

A class action lawsuit being launched at the High Court at Auckland this morning alleges New Zealanders have been paying for “ineffective” over-the-counter cold and flu medications.

The class action, or representative lawsuit, against multinational pharmaceutical company Johnson & Johnson has been brought by Australian class action firm JGA Saddler and funded by global litigation funder Omni Bridgeway.

JGA and Omni brought exactly the same lawsuit in Australia late in 2024, alleging that “Johnson & Johnson manufactured and distributed oral cold and flu products containing Phenylephrine under the Codral, Sudafed and Benadryl brands that are ineffective at relieving the symptoms of cold and flu they were marketed to treat”.

Across many countries, the decongestant pseudoephedrine was removed from over-the counter flu and hayfever medications in the 2010s over concerns it was being used in the manufacture of illicit drugs. An older drug, phenylephrine, was added to products such as Codral Cold & Flu and Sudafed PE, made by Johnson & Johnson, as a substitute.

But the US Food and Drug Administration has recently conducted studies that “fail[ed] to demonstrate that oral phenylephrine is effective to relieve nasal congestion” when taken orally, because it metabolises too quickly in the stomach to confer benefits, and has since advocated for its removal from medications.

JGA Saddler director Rebecca Jancauskas is spearheading class actions against Johnson & Johnson across Australasia.

The contention of JGA Saddler director Rebecca Jancauskas is that Johnson & Johnson knew phenylephrine was ineffective, but relied on “outdated, fallible studies” to sell the public “products that don’t do what they say on the packet”.

And New Zealanders probably brought more per capita than other countries including Australia, she told The Post.

“In 2006 pseudoephedrine was moved behind the pharmacy counter in Australia … and still to this day you need to present at the pharmacy, answer the pharmacists’ questions, produce photo ID have your name be entered onto a register,” she said.

“But in New Zealand it was off the market [completely] between 2011 and 2024, so there was no other alternative for consumers in New Zealand suffering from sinus symptoms or allergy symptoms or cold and flu symptoms, who were desperate for some relief from their congestion and sinus pressure … so for that reason, we expect that the quantity of products purchased per consumer is higher in New Zealand than it is in Australia.”

Johnson & Johnson has been approached for comment, but has so far declined to do so in Australia.

“Johnson & Johnson has misled the public and they need to be held accountable for their actions,” she said.

The US FDA has found the drugs commonly brought from pharmacies to treat cold and flu symptoms - that don’t contain pseudoephedrine - don’t do much.

“We are asking all New Zealanders who have purchased any of the 17 affected products to register to be a part of the class action.”

Jon Duffy, chief executive of Consumer NZ, also weighed in on the case, saying the organisation urged people to stop using the products and join the class action. It also called for sales of the products to be halted until the efficacy of the claims could be independently verified.

“Large multinational companies with ample resources have no excuse for misleading consumers about the efficacy of their products. Consumers are especially vulnerable when they are unable to test product claims themselves and when it comes to products in the health space, it’s critical that consumers can rely on the claims manufacturers make,” Duffy said.

“Companies must be held to account if they are found to breach the Consumer Guarantees and Fair Trading Acts.”

In relation to the class action lodged in Australia, Jancauskas said there had been no progress as yet, although the parties had been listed for their first case management hearing in early March in the Federal Court of Victoria.

Like most litigation funders, Omni Bridgeway will carry the cost and the risk of the case ‒ funding the lawyers and being on the hook for any costs incurred in a loss. But like other litigation funders, it will also be in line for a cut of the proceeds if the case succeeds. Jancauskas did not reveal how much that would be, but most litigation funders are assured at least 20% in the event of a win.

Those who want to take part in the cold and flu medication class action claim in New Zealand need to provide a declaration of how much they are believed to have spent over the years on these drugs. They do not pay to join the class action.