ACT Mouthwash Maker Argues Against Class Certification

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The maker of ACT mouthwash is asking a Florida federal judge not to grant class certification to a proposed class action lawsuit alleging that the company makes false claims by saying the mouthwash is capable of rebuilding tooth enamel.

Chattem Inc. said that the class action lawsuit filed by plaintiff Lauren Foster shouldn’t be certified because the company disagrees with Foster’s claim that she bought the mouthwash for a premium price and it doubts that she even knew how much the ACT mouthwash cost when she bought it or that she compared the prices of other mouthwash products.

According to Chattem, its ACT Restoring Mouthwash does “rebuild” tooth enamel by fixing weaknesses in the tooth enamel.

“Plaintiff takes an unreasonably narrow view of the term ‘rebuilds tooth enamel,’ claiming to believe that the use of this phrase means that the ACT Restoring ‘rebuilding the tooth to its original structure,'” the ACT mouthwash maker wrote.

“In other words, she claims to have believed that after using ACT Restoring, she would have more tooth enamel, that the product would replace it. Of course, the claim at issue is that ACT Restoring ‘rebuilds’ enamel, not replaces it,” it adds.

According to Chattem, “the phrase ‘rebuilds tooth enamel’ is an accurate and simple way to describe the complicated process by which ACT Restoring ‘remineralizes’ teeth, thereby rebuilding the outer surface layer of teeth.”

The mouthwash maker explains that “if sodium fluoride, the active ingredient in ACT Restoring, is introduced before a cavity forms, it can reverse this process and cause remineralization.” And that “fluoride essentially speeds up the growth of a new surface on the partially demineralized subsurface crystals in the caries lesion or cavity.”

Foster wants to represent a class of ACT Restoring Mouthwash users who have purchased the mouthwash since 2010. According to Chattem, the problem with the class definition is that it includes a time period both before and after the claim that the mouthwash restores enamel was printed on the label.

Chattem began selling the ACT Restoring Mouthwash in 2007, which is made with sodium fluoride and alcohol.

“In late 2012, as part of an overall brand refresh, Chattem modified its product label for ACT Restoring to the version that appears on store shelves today,” Chattem’s response to Foster’s motion for class certification says. “Bottles with the new label were first shipped in December 2012 and began appearing on store shelves in approximately early 2013. The current label contains the ‘rebuilds tooth enamel’ claim.”

Foster is charging Chattem with violating Florida’s deceptive and unfair trade practices act.

In July, U.S. District Judge Roy Dalton, who is overseeing the ACT mouthwash class action lawsuit, dismissed the Magnuson Moss-Warranty Act and breach of implied warranty allegations against Chattem.

The plaintiff in the current suit 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 Restoring 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.