Mars-owned Wrigley will pay consumers up to $7m after settling a class action that challenged its right to claim its Eclipse gum was, "scientifically proven to help kill the germs that cause bad breath".
Wrigley agreed to set up a fund of $6m (with another $1m added if needed) with consumers able to claim $10 each if they could qualify purchases of the magnolia bark extract-fortified gum.
The gum giant also agreed to amend the claims and pay all costs associated with settling the action that was brought by the same two legal firms – Blood Hurst & O'Reardon and Robbins Geller Rudman & Dowd – that won a similar class action against Dannon over probiotic yogurt claims last year.
But the company was unavailable for further comment today about how it might amend those claims.
Timothy Blood, from Blood Hurst & O'Reardon, said his firm was engaged in actions against what he called a proliferation of “junk science” backing claims.
Class actions against General Mills probiotic yogurt Yoplait YoPlus were pending.
“There seems to be an upswing in functional food claims that are unsubstantiated due to the lack of a pre-approval process in the US,” he said.
Wrigley conducted a trial published in the Journal of Agricultural and Food Chemistry in 2007 that showed magnolia bark extract removed about 20 times more of the germs that cause bad breath within half an hour than placebo mints.
Coverage of that study can be found here.
In a statement Wrigley vice president and general manager of US Gum and Mints, Paul Chibe, said the company stood by its science, denied any wrongdoing but settled to, “prevent further distraction to its business”.
Industry observers said the action highlighted how difficult it was to make claims that boasted of “scientifically proven” effects.
“The filing of this lawsuit and the large settlement again rings a loud alarm that every company should carefully review all messages on its product labeling and advertising to make sure that it has support for the health-related claims and that the claim is not conveyed to the consumer in a misleading way,” said Colorado-based attorney, James Prochnow, a partner at Greenberg Traurig.
“The most notable aspect to this matter is that it is another example of the important role non-governmental forces play in the overall regulation of false and misleading advertising. There isn't any publicly available information that indicates that either the FTC or the FDA have or are conducting investigations into these claims or the behavior of Wrigley, notwithstanding the fact that a food (gum) was making a drug claim.”
New York-based attorney, Marc Ullman, from Ullman, Shapiro, Ullman, added companies needed the highest level of evidence if they were going to make such claims, and that Wrigley had decided it was better to settle than take the matter before a jury.
Ivan Wasserman, a Washington DC-based advertising and labeling attorney at Manatt Phelps & Phillips, said he was not surprised Wrigley had agreed to settle.
"Its another example of the rise of class actions involving advertising and labeling claims for food and dietary supplement products,” he said. “Defending a class action litigation is extremely burdensome, so while some companies will fight, others, for a variety of reasons, will decide to settle."
The settlement is subject to approval by the US District Court for the Southern District of Florida.