Alert: Sleep Aids May Make You Drowsy.

A California court recently ruled that a manufacturer’s alleged failure to disclose that a sleep aid may make you drowsy is insufficient grounds for class action.

Both instinct and common sense dictate that a product specifically created and marketed as a sleep aid would tend to make you a bit tired; therefore, you’d think that disclosing that fact on the package wouldn’t be necessary.  A recent case in California supports that conclusion, but also illustrates how ridiculously treacherous the advertising class action landscape has become in that state.

A federal judge in California has recently dismissed a putative class action against HBB, LLC, dba Lazy Larry, which manufactures a chocolate brownie-like product called the “Lazy Cake.”  According to the company’s website, the Lazy Cake “is a dietary supplement that can help the body and mind relax naturally, easing stress, and helping you sleep better.”

Sounds like a nice pitch, especially for energy drink junkies trying to wind down after a tough day.  In fact, each brownie contains more than twice the recommended dose of melatonin recommended to induce sleep.  The manufacturer even acknowledges the brownies are a chocolate alternative to prescription sleep medication, and apparently the stuff works: consumers have reported that after eating a Lazy Cake, they experienced uncontrollable drowsiness.

Despite the fact that drowsiness is the intended result of ingesting the product, the manufacturer was hit with a class action lawsuit filed in the federal district court for the Central District of California.  According to the Plaintiff, the Lazy Cakes package failed to disclose its potential effects, including “extreme fatigue, exhaustion and slurred speech.”

Judge Manuel Real concluded that the product packaging adequately displayed its contents. “It is undisputed that the packaging on the product accurately disclosed the quantity of melatonin in each serving as well as the relevant serving size [and] that the product contained a disclaimer of the potential to cause drowsiness,” the judge reportedly told lawyers during a hearing. “Plaintiff fails to demonstrate that a reasonable person would been deceived about the melatonin content and potential side effect of Lazy Cakes.”

It was a weak case, but the sheer chutzpah of the claim is worthy of comment.  The fact that the suit was dismissed doesn’t mean that Lazy Larry is off the hook, however.  The products have also come under fire from lawmakers and the Food and Drug Administration, which in August 2011 warned the company that the brownies were adulterated under federal law.



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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