Listerine Total Care Class Action Lawsuit Dismissed

The class action lawsuit accusing Johnson & Johnson of using false advertising and misbranding to sell its Listerine brand mouthwash was dismissed by a New York federal judge this week.

Plaintiffs Suzanna Bowling and Edward Buchannan alleged in the Listerine class action lawsuit that Johnson & Johnson falsely advertised that its Listerine Total Care mouthwash fights dental plaque above the gum line in May 2013. However, the false advertising class action lawsuit alleges that Listerine’s sole active ingredient, sodium fluoride, “does not effectively fight plaque above the gum line” and is “ineffective for the purposes conveyed to consumers.”

The Listerine class action lawsuit further alleged that Johnson & Johnson told consumers that Listerine Total Care is approved by the U.S. Food and Drug Administration (FDA), when, in fact, the product “does not have FDA approval for all of the purposes for which it is marketed.”

Johnson & Johnson filed a motion to dismiss the Listerine class action lawsuit and U.S. District Judge Shira A. Scheindlin agreed in an order issued this week. Judge Scheindlin found that Bowling and Buchannan had failed to establish that their state law claims are not preempted by the federal law because they did not plead facts suggesting that the FDA has affirmatively prohibited the label. The plaintiffs had only shown that the FDA has not permitted the label “Restores Enamel,” wrote the judge in the order. “Otherwise,” wrote the judge, “plaintiffs’ state law causes of action would be, in effect, imposing a labeling requirement that is ‘not identical with’ labeling requirements under federal law.”

Judge Scheindlin wrote further that if the FDA had issued no guidance on dental hygiene products then Listerine Total Care items may have been beyond the scope of federal regulation and the false advertising class action lawsuit may have moved forward. However, the judge noted that the FDA declined to indicate that the “Restores Enamel” label is misleading in agency documents including warning letters the FDA sent to Johnson & Johnson that expressed no concern about the label “Restores Enamel.”

“One way the FDA exercises its regulatory authority is by sending ‘warning letters’ to industry actors,” Judge Scheindlin wrote. “On multiple occasions, the FDA has sent such letters to manufacturers of OTC drugs containing sodium fluoride — including, but not exclusively, J&J — to clarify the parameters of the 1995 Monograph (the ‘Warning Letters’). In each of these letters, the FDA has objected to certain labeling practices – for example, the representation that sodium fluoride ‘fights plaque’ but it has expressed no concern about the label ‘Restores Enamel.’”

The plaintiffs’ other claims for a private cause of action under the federal Food, Drug and Cosmetic Act were dismissed by the judge as well. Judge Scheindlin said the federal law does not authorize private causes of action. Finally, Judge Scheindlin said that the court lacks subject matter jurisdiction over the plaintiffs’ Magnuson-Moss Warranty Act claim, agreeing with one of J&J’s three arguments that the “Restores Enamel” label is not a warranty within the meaning of the law because it does not guarantee performance over a specific time period.

Bowling and Buchannan are represented by Neal J. Deckant of Bursor & Fisher PA and Patrick C. Cooper of Ward & Wilson LLC.

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