CVS Health “Fluoride Free,” “Antiplaque,” “Natural” Toothpaste Class Action

CVS Pharmacy, Inc. offers a CVS Health toothpaste that is “Fluoride Free,” Antiplaque,” and “Certified Natural,” but the complaint for this class action alleges that none of these claims, nor the indication of peppermint on the packaging, are completely true—at least, not as the typical consumer would understand them, it claims.

Two classes have been defined for this action:

• The New York Class is all persons in New York who bought the product during the applicable statutes of limitations.
• The Consumer Fraud Multi-State Class is all persons in Texas, North Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, West Virginia, Arkansas, South Carolina, and Utah who bought the product during the applicable statutes of limitations.

The complaint defines “plaque” as “a film of bacteria which adheres to teeth and plays a critical role in development of caries and gingivitis.” When plaque accumulates, the complaint claims, it may lead to gingivitis, a disease of the gums, so that getting rid of plaque can be important for the health of the mouth.

The complaint cites two forms of plaque control. Mechanical control generally involves gritty materials that can scrape plaque off of teeth, but the complaint alleges that this does not remove enough plaque to be “of therapeutic benefit.” Chemical control generally involves chemical or antibacterial substances, for example, stannous fluoride.

The complaint alleges, “Stannous fluoride is proven to remove plaque via its antibacterial properties, thereby preventing and reducing gingivitis.” However, the complaint claims that some people believe that fluoride is harmful and don’t want to use it.

Page 1 of the complaint shows the packaging for the product, which include the representations “Fluoride Free,” Antiplaque & Whitening,” a seal with the words “Certified Natural,” and an image of mint leaves with the word “Peppermint.”

“Based on the statements, ‘Fluoride Free’ and ‘Antiplaque,’” the complaint alleges, “consumers … expected the Product would contain fluoride alternative ingredients to remove or reduce plaque to affect gingivitis.” But the complaint alleges that the toothpaste contains no such ingredient.

Page 3 of the complaint reproduces the ingredient label for the product. The first ingredient is dicalcium phosphate dihydrate, which the complaint claims to work “as an abrasive to assist plaque removal.” The complaint alleges that the Food and Drug Administration (FDA) “has concluded that dicalcium phosphate dihydrate is not effective for use as an antigingivitis agent because there is no evidence that it chemically interferes with plaque formation or removal.”

The eighth ingredient, sodium bicarbonate, the complaint claims, “has been shown to exert an antibacterial action on several oral microorganisms, but only in high dosages and with extended exposure time” so that it “is not effective at reducing plaque or gingivitis.”

The ingredient list also shows no peppermint oil or peppermint extract.

Also, the complaint contends that the “Certified Natural” claim is misleading, because this particular certification allows for five percent of the ingredients not to be natural or from natural sources. It argues that the “most functionally significant ingredients … are neither.”

Article Type: Lawsuit
Topic: Consumer
Tags: All Natural Claims, Breach of warranty, Deceptive Advertising, Deceptive Labels, Does Not Contain Implied Ingredients, Fraud, Item Does Not Do What It Is Advertised to Do