Office of the Attorney General
Attorney General Conway Announces Settlement Of Deceptive Advertising Claim Against Makers of Airborne
Attorney General Jack Conway, together with the attorneys general of Alaska, Arkansas, California, Connecticut, Delaware, the District of Columbia, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Washington, and Wisconsin filed a settlement today with Airborne Health, Inc., the Florida-based maker of the Airborne Effervescent Health Formula, and its founders and current owners, Victoria Knight-McDowell and her husband Thomas John McDowell.
Under the settlement, the defendants will pay $7 million to the attorneys general to settle allegations that the defendants made unsubstantiated and unlawful marketing claims concerning their products. The $7 million payment is the largest payment to date in a multi-state settlement with a dietary supplement producer. Kentucky will receive $150,000 from the settlement.
“I, along with my colleagues from 32 other jurisdictions, am committed to taking action to stop deceptive advertising and unfair trade practices, particularly those that may affect the health and well-being of Kentuckians. Businesses should not profit by making unsubstantiated health claims to sell product to consumers,” said Attorney General Jack Conway.
Airborne – Original is the number one selling dietary supplement in its category and is sold at most major retailers. It consists of Vitamin A, E, zinc, selenium and large doses of Vitamin C. Today’s settlement covers all Airborne products including Airborne – Original, Airborne – Pink Grapefruit, Airborne – Lemon-Lime, Airborne – Nighttime, Airborne, Jr., Airborne On-The-Go, Airborne Seasonal Relief, Airborne Sore Throat Gummi Lozenges, Airborne Soothing Throat Gummi Lozenges, Airborne Power Pixies, or any substantially similar product the defendants produce in the future.
The settlement filed today by the attorneys general alleges that the defendants made health-related claims in the marketing, packaging, advertising, offering and selling of their products that were not substantiated by reliable and competent scientific evidence at the time the claims were made. The attorneys general allege that the defendants explicitly and implicitly claimed to sell a cold-prevention remedy, a sore-throat remedy, a germ fighter, and an allergy remedy without adequate substantiation to prove that the products could perform as advertised at the time the claims were made. The states also allege that the defendants failed to adequately warn consumers about potential health risks to select populations, including pregnant women, under old formulations of Airborne that contained 5,000 International Units of Vitamin A per dose. Currently, the level of Vitamin A in Airborne is 2,000 International Units.
Under the settlement, the defendants have agreed not to make any express or implied claim concerning the health benefit, performance, efficacy or safety of their dietary supplement products, unless at the time the claim is made competent and reliable scientific evidence exists to substantiate each claim. Specifically, the defendants are prohibited from saying “take at the first sign of a cold symptom,” and other claims that imply that Airborne can diagnose, mitigate, prevent, treat, or cure colds, coughs, the flu, an upper-respiratory infection or allergies. By law, advertisements for dietary supplements like Airborne, cannot make such drug claims even if they can provide substantiation, unless and until they have been approved as a drug by the Federal Drug Administration.
Under the settlement, the defendants are also prohibited from requiring, demanding, or otherwise influencing where a retailer places their products through direct affirmative action. In addition, the defendants are prohibited from marketing any product that contains directions for use that would, if followed, result in an individual ingesting 15,000 International Units of Vitamin A or more per day. While the scientific literature is not completely uniform, some studies place the toxicity levels of Vitamin A at 100,000 International Units. Other studies place the toxicity levels at much lower amounts, particularly for pregnant women and children. If a consumer followed the current directions for use, they would ingest 6,000 International Units of Vitamin A.
The multi-state settlement follows settlements the defendants reached with the Federal Trade Commission (FTC) and a private class action lawsuit, Wilson v. Airborne, Inc., et al, filed in Federal District Court in the Central District of California. Under the terms of those settlements, consumers could receive restitution under a fund totaling $23.5 million, if they made their claims by September 15, 2008. Under the settlement reached with the FTC, an additional $6.5 million would be added to the fund if the number of claims exceeded $23.5 million.
The defendants have not admitted to any wrongdoing and deny the factual allegations asserted in the attorney general’s complaint.