Tom’s of Maine Fluoride-Free “Antiplaque” Toothpaste Class Action

This class action relates to a Tom’s of Maine, Inc. toothpaste that is marketed as being “Fluoride-Free” and “Antiplaque & Whitening.” The marketing of the product is misleading, the complaint claims, because it suggests that the toothpaste contains ingredients that are as effective at preventing plaque and gingivitis as fluoride. The complaint claims that this is not true of any of the ingredients.

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, South Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, West Virginia, Arkansas, North Carolina, and Utah who bought the product during the applicable statutes of limitations.

The complaint defines plaque as “a film of bacteria consisting of proteins, carbohydrates, microorganisms, and other organic and inorganic materials that accumulate on teeth.” The complaint claims that the Food and Drug Administration (FDA), the American Dental Association (ADA), and the American Academy of Periodontology (AAP) all consider the primary aim of controlling plaque to be preventing gingivitis and cavities.

Plaque control can be done in two ways, the complaint alleges: First, mechanical plaque control normally involves abrasive substances to get rid of plaque deposits. The complaint alleges, “Such mechanical methods are effective mainly as delivery systems for ingredients like fluoride, which reharden and remineralize teeth, while making bacteria less tolerant to acid.” Second, chemical plaque control relies on antimicrobial or chemical activity.

Many consumers these days do not want to use fluoride, the complaint alleges, because they believe it is harmful. “When consumers see the Product’s ‘Antiplaque’ representation,” the complaint claims, “they will expect it is effective at preventing and reducing gingivitis.”

Page 3 of the complaint shows an image of the ingredient panel on the toothpaste and reviews the ingredients. The product contains some abrasive ingredients, including calcium carbonate, hydrated silica, and sodium bicarbonate, but the complaint alleges that these cannot reduce plaque for the prevention or control of gingivitis.

Sodium bicarbonate does offer some antibacterial action, the complaint alleges, but is “only in high dosages and with extended exposure time, circumstances different from someone brushing their teeth.”

Another ingredient, sodium lauryl sulfate, also cannot reduce plaque “in a therapeutically significant way.” “In fact,” the complaint alleges, “its binding to positively charged side groups of proteins may lead to denaturation or loss of biological activity through conformational changes in the molecules.”

Finally, the complaint asserts, the peppermint oil ingredient cannot control plaque to a point where it can significantly prevent gingivitis.

“While the label is permitted to describe the Product’s antiplaque ability, related to its abrasive ingredient,” the complaint contends, the added claim that it is “fluoride free” “tells consumers that such qualities will be based on equally effective fluoride alternatives, when this is false.”

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Labels, Item Does Not Do What It Is Advertised to Do