(CN) - A California appeals court once again decertified a class of Californians who accused Pfizer of falsely touting its Listerine mouthwash as being "as effective as dental floss" in reducing plaque and gingivitis.
The 2nd District Court of Appeal in Los Angeles affirmed its July 2006 ruling that the class, which covered everyone who bought Listerine in California from June 2004 through January 2005, was "grossly overbroad."
Many, if not most, of the proposed class members were never exposed to Pfizer's "as effective as floss" labels or TV commercials, the court noted.
The Supreme Court had sent the case back to the appeals court in August 2009 with instructions to vacate or reconsider in light of Tobacco II, which covered consumers affected by the tobacco industry's decades-long campaign to hide the addictive nature of nicotine and the link between tobacco and disease.
But the California appeals court saw few similarities between Listerine buyers and smokers affected by the tobacco industry's "pervasive fraudulent campaign."
It noted that 34 different Listerine mouthwash bottles were sold in California at the time, 19 of which did not contain a label comparing Listerine to floss.
TV commercials suggesting that Listerine could replace floss can't be linked to consumer purchases, the court ruled, and the lead plaintiff's experience of reading a label and taking it to heart did not represent all consumers' reactions to the marketing campaign.
The court granted Pfizer's petition for an order forcing the Superior Court to decertify the class, saying not all proposed class members are entitled to restitution under unfair competition law.
"[I]t is one thing to say that restitution can be awarded to purchasers of cigarettes where the cigarettes were marketed as part of a massive, sustained, decades-long fraudulent advertising campaign ...," Justice Joan Klein wrote.
"It is entirely another to say that restitution can be awarded to all purchasers of Listerine in California over a six-month period where the undisputed evidence shows many, if not most, class members were not exposed to the 'as effective as floss' campaign and therefore did not purchase Listerine because of it."
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