Listerine Total Care Class Action Lawsuit Fights Tooth Enamel Claims

Johnson & Johnson was hit with a class action lawsuit Tuesday alleging it falsely advertises that Listerine Total Care mouthwash can restore tooth enamel, allowing J&J to charge more than a third more for the product over other virtually identical mouthwash products.

Lead plaintiff, New York citizen Suzanna Bowling, alleges in the Listerine class action lawsuit that an “overwhelming consensus of medical and dental experts concludes that the loss of tooth enamel is permanent,” however Listerine Total Care, among other Johnson & Johnson mouthwash products, claims to “Restore Enamel.” Bowling argues that Listerine’s “false and misleading labels offering to ‘Restore Enamel’ were highly material to consumers and served to differentiate Listerine Total Care from comparable mouthwash products” and “[t]his label allowed Defendants to charge a 35.8% price premium for Listerine Total Care.”

The Listerine class action lawsuit claims that Listerine Total Care “is essentially identical” to Listerine Fluoride Defense Anticativity Mouthwash. “Both products have the same active ingredient, in the same amount, the same indicated uses, the same warnings, the same directions, and the same inactive ingredients.” The only difference, according to the Listerine class action lawsuit, is the packaging, the color, and the price.

Bowling explains the subtle differences used to jack up the price of Listerine Total Care:

1. Listerine Total Care’s packaging includes claims that the product will “Restore Enamel,” while the packaging for Listerine Fluoride Defense simply claims that it will “Strengthen Enamel;”
2. Listerine Total Care uses a slightly different coloring additive than Listerine Fluoride Defense, making it appear purple instead of blue; and
3. Listerine Total Care is priced at $9.49 for a 1.0 liter bottle, compared to $6.99 for Listerine Fluoride Defense – a 35.8% price premium.

The Listerine class action lawsuit claims that “like the vast majority of adults, Ms. Bowling suffers from loss of tooth enamel” and “prior to her purchase of Listerine Total Care, Ms. Bowling reviewed the product’s labeling and packaging.” Bowling alleges that she and other similar consumers would not have purchased Listerine Total Care, or paid more for the product, had they known that it is allegedly “ineffective” at restoring tooth enamel.

Bowling is seeking to represent a Class of consumers nationwide and in New York who purchased Listerine Total Care for personal or household use.

She alleges that Johnson & Johnson’s labeling of Listerine Total Care violates the Magnuson Moss Warranty Act, is a breach of express and implied warranties, constitutes unjust enrichment, and violates New York’s General Business Laws, as well as constituting negligent misrepresentation, and fraud.

The Bowling v. Johnson & Johnson case follows an unsuccessful bid by consumers to sue the company in 2010 for falsely advertising that Listerine Total Care fights plaque above the gum line. A total of eight Listerine Total Care class action lawsuits were filed and consolidated into multidistrict litigation.

On Nov. 11, 2011, the court dismissed all cases in the Listerine Total Care MDL (In re: Listerine Total Care Mouthwash Marketing and Sales Practices Litigation, MDL No. 2210, in U.S. District Court for the Southern District of Florida). The dismissal followed an Aug. 2 motion by Johnson subsidiary McNeil-PPC Inc., which said its mouthwash is clinically proven to fight plaque above the gums, therefore, claims that it falsely advertised the mouthwash’s anti-plaque properties are baseless.

Lead plaintiff Suzanna Bowling is represented by Neal J. Deckant, Scott A. Bursor, Joseph I. Marchese and Yitzchak Kopel of Bursor & Fisher PA.

The Listerine Total Care Tooth Enamel Class Action Lawsuit is Suzanna Bowling v. Johnson & Johnson, et al., Case No. 1:14-cv-03727, in the U.S. District Court for the Southern District of New York.