Antitrust Law Daily Wrap Up, ADVERTISING—M.D. Fla.: Charges that mouthwash tooth enamel ads were misleading presented plausible claim, (Jul 25, 2014)
Law Firms Mentioned:Miller & Martin, PLLC | The Eggnatz Law Firm, PA
Organizations Mentioned:Chattem, Inc. | Miller & Martin, LLP
By Edward L. Puzzo, J.D.
A false advertising action, citing representations that a mouthwash product could rebuild tooth enamel, was plausible and adequately pleaded to survive a motion to dismiss, the federal district court in Orlando has ruled (Foster v. Chattem, Inc., July 23, 2014, Dalton, R.).
Lauren Foster, on behalf of a putative class, brought an action against Chattem, Inc., the manufacturer of ACT mouthwash. Foster alleged that Chattem violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) by claiming in an ad that its product “rebuilds tooth enamel” when it can only help “remineralize” weak spots in tooth enamel. Foster alleged that, due to this misrepresentation, the product was either rendered valueless, due to misbranding, or worth less than paid, due to an included premium charge for the misbranded feature.
Plausible allegation. Chattem moved to dismiss, arguing that plaintiff failed to plausibly allege that the statement was false, since a reasonable consumer would not differentiate between “rebuilding” and “remineralizing.” Chattem also argued that Foster failed to plausibly state a claim for damages.
The court ruled that the issue of whether “rebuilding” was different than “remineralizing” was a factual question outside the scope of a motion to dismiss. The allegations that the “rebuilding” claim was false were all that were required at this stage, the court ruled. The damages allegations would have to be proven, but the alternate theories of recovery pleaded by plaintiff were sufficient at this stage. The court therefore denied Chattem’s motion to dismiss for lack of plausibility.
The case is Civil Action No. 6:14-cv-346-Orl-37GJK.
Attorneys: Joshua H. Eggnatz (The Eggnatz Law Firm, PA) for Lauren Foster. Eileen Rumfelt (Miller & Martin, PLLC) for Chattem, Inc.
Companies: Chattem, Inc.
Cases: Advertising StateUnfairTradePractices FloridaNews