by Marty Traynor Spencer
Airborne Health has agreed to pay up to $30 million to settle Federal Trade Commission charges that it did not have adequate evidence to support claims it made in advertising. The Bonita Springs, Fla.-based company makes a popular effervescent tablet marketed as a cold prevention and treatment remedy.
The lawsuit also names the former schoolteacher who invented Airborne, Victoria Knight-McDowell, and her husband Thomas John McDowell. If the court approves the settlement, it will prohibit the defendants from making false and unsubstantiated cold-prevention, germ-fighting and efficacy claims. The monetary judgment will be satisfied by the defendants' adding $6.5 million to the funds they have already agreed to pay in a related private class-action lawsuit, bringing the total fund to $30 million.
"There is no credible evidence that Airborne products, taken as directed, will reduce the severity or duration of colds, or provide any tangible benefit for people who are exposed to germs in crowded places," said Lydia Parnes, director of the FTC's Bureau of Consumer Protection.
Consumers who purchased Airborne products can file for refunds for up to six product purchases until Sept. 15. Eligibility requirements and procedures for filing a claim online or by mail can be found at www.airbornehealthsettlement.com.
"The gist of the problem is that they claimed they had clinical proof" of Airborne's efficacy, said Marc Ullman, partner at New York-based law firm Ullman, Shapiro and Ullman. "That claim set the bar very high. When they could not provide the proof, they were making unsubstantiated claims.
"A good takeaway for other supplement makers is that you need to be careful not to overstate your evidence. If you have animal studies or in vitro studies—don't exaggerate and make a 'clinically proven' claim, because then your animal and in vitro studies won't do the trick."
The FTC's complaint and agreed-upon final order can be found at: http://www.ftc.gov/os/caselist/0723183/080814airbornecomplaint.pdf.