Judge Dismisses Part Of False Ad ACT Mouthwash Class Action Lawsuit

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A Florida federal judge has dismissed part of a class action lawsuit filed against Chattem, Inc., the makers of ACT Mouthwash, alleging that the company makes false claims about the mouth rinse on its label.

Plaintiff Lauren Foster says that the claim on the packaging of ACT Mouthwash products that the mouth rinse is able to “‘rebuild tooth enamel'” is inaccurate.

“Plaintiff alleges that it is not possible to ‘rebuild’ tooth enamel;’ rather Plaintiff contends that the product only strengthens weak spots in tooth enamel via ‘remineralization,'” U.S. District Judge Roy Dalton explains.

Foster has charged Chattem with violating Florida’s Deceptive and Unfair Trade Practices Act, unjust enrichment, and breach of implied warranty of merchantability under the federal Magnuson-Moss Warranty Act.

ACT Mouthwash makers filed a motion to have the class action lawsuit dismissed.

Foster disagreed with the mouthwash makers assertion that the class action lawsuit “fails to plausibly allege that the phrase ‘rebuilds tooth enamel’ is false and fails to plausibly state a claim for damages.”

The Florida federal judge explained in his July 23 ruling that while the Chattem argued “that a reasonable consumer would not differentiate between ‘rebuilding’ tooth enamel and ‘repairing’ or ‘remineralizing’ it” that “this is a factual issue outside the scope of a motion to dismiss.”

Judge Dalton also disagreed with Chattem’s claim that Foster didn’t “plausibly state a claim for damages,” saying that the “contention is also unavailing” and that “she has pled viable alternative theories of recovery.”

However, the Florida judge agreed with the ACT Mouthwash maker that the implied warranty claims “fail because plaintiff is not in privity with defendant.”

The same is true for the Magnuson-Moss Warranty Act allegation, which he says “is governed by the same standards as the state law breach of implied warranty claim.”

“It is now ‘well-settled’ in Florida that ‘a plaintiff cannot recover economic losses for breach of implied warranty in the absence of privity,” Dalton wrote.

According to the federal judge, “because plaintiff merely alleges that she saw the packaging in the store and then purchased the product and does not allege that any personal contact between herself and a representative of Defendant, she has failed to demonstrate privity.”

Therefore, the judge dismissed both the breach of implied warranty and the Magnuson-Moss Warranty Act allegations without prejudice.

This is not the first time Chattem has faced legal action over its mouth rinse products.

The ACT Mouthwash maker reached a class action settlement in 2013 in another false advertising class action lawsuit, alleging that Chattem made a false claim on the packaging of its ACT Total Care Anticavity Fluoride Mouthwash by claiming that the mouth rinse can reduce, remove or otherwise fight plaque.

Lauren Foster is represented by Joshua H. Eggnatz of the The Eggnatz Law Firm PA.

Chattem is represented by Amanda E. Reagan, Frederick H.L. McClure, Christopher Young of DLA Piper LLP.

The ACT Mouthwash Class Action Lawsuit is Foster v. Chattem Inc., Case No. 6:14-cv-00346, U.S. District Court for the Middle District of Florida.