Court Won’t Spit Out Suit Over Futile Mouth Rinse

(CN) - Consumers can sue Walgreens for promoting, and charging a "significant price" for, a mouth rinse that the company misrepresented as capable of removing plaque above the gum line to promote healthy gums, a Florida federal judge ruled.

A class action filed in the Southern District of Florida alleges that Walgreen Co. marketed its Full Action mouth rinse with claims that are "misleading, false and reasonably likely to deceive the public." The class says the national drugstore chain has no scientific evidence to back up labeling claims that Full Action helps kill germs that cause bad breath and fights plaque and gum disease.

In substantiating these claims, the class pointed to a September 2010 letter from the Food and Drug Administration, which notifies Walgreens that Full Action's label information is "inconsistent with the actual ingredients of the product."

Walgreens argued that the class cannot base its action on an alleged violation of the Food Drug and Cosmetic Act since "the FDCA is a federal statute for which no private right of action exists."

U.S. District Judge James Cohn rejected the contention in a March 8 ruling. In a nine-page order, Cohn found that the plaintiffs' reliance on the FDA does not mean it is disguising federal violations as state-law claims.

Walgreens had also tried to dismiss the allegations of unfair trade practices and breach of warranty, arguing that the class did not rely on the label information when deciding to purchase Full Action.

Cohn rebuffed this maneuver as well. "A deceptive practice can cause a consumer damages even if the consumer does not rely on the deceptive practice when purchasing a particular product," he wrote.

The plaintiffs have a valid claim for breach of express warranty since they claim that Full Action did not provide the benefits Walgreens had advertised, according to the decision.

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