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TRENTON
-- Attorney General Anne Milgram announced
today that New Jersey has entered into a
multi-state settlement agreement with Airborne
Health, Inc., that resolves allegations
the Florida-based firm made unsubstantiated
and unlawful claims about the health benefits
of its various dietary supplement products.
Under
terms of the settlement agreement Airborne,
maker of the Airborne Effervescent Health
Formula, and its owners, Victoria Knight-McDowell
and her husband Thomas J. McDowell, will
pay $7 million to the participating states.
The $7 million figure represents the largest
payout to date in a multi-state settlement
with a manufacturer of dietary supplements.
New Jersey’s share is $150,000.
Airborne
Health’s Airborne-Original is the
number one selling dietary supplement in
its category, and is sold by most major
retailers. The multi-state settlement applies
to Airborne-Original, as well as other current
Airborne products including: Airborne Pink
Grapefruit, Airborne Lemon-Lime, Airborne-Nighttime,
Airborne, Jr., Airborne On-the-Go, Airborne
Seasonal Relief, Airborne Sore Throat Gummi
Lozenges, Airborne Soothing Throat Gummi
Lozenges and Airborne Power Pixies. The
agreement also applies to any substantially
similar products Airborne produces in the
future.
A
lawsuit filed by the state in New Jersey
Superior Court in Mercer County alleges
that Airborne made health-related claims
in the marketing, packaging, advertising,
offering and selling of their products that
were not substantiated by reliable and competent
scientific evidence at the time the claims
were made. The lawsuit alleges that Airborne
claimed – both explicitly and implicitly
-- to sell a cold prevention remedy, a sore
throat remedy, a germ fighter, and an allergy
remedy without adequate substantiation to
prove that the products could perform as
advertised.
“New
Jersey consumers deserve nothing less than
accurate, reliable information about the
products they buy or are considering buying,
particularly when those products are health-related,”
said Attorney General Milgram.
“We
are committed to ensuring that consumers
are given complete and accurate information
about products, and that any claims made
about product performance are substantiated.
Manufacturers and sellers who do business
in New Jersey and fail to meet this standard
can expect to be held accountable,”
Milgram added.
The
top-selling Airborne-Original dietary supplement
consists of Vitamins A and E, zinc, selenium
and large doses of Vitamin C. New Jersey
and the other states participating in the
settlement allege that Airborne failed to
adequately warn consumers about potential
health risks to select populations -- including
pregnant women -- under old formulations
of Airborne that contained 5,000 International
Units of Vitamin A per dose. Currently,
the level of Vitamin A in Airborne is 2,000
International Units.
Under terms of the settlement announced
today, Airborne cannot make any express
or implied claims concerning the health
benefits, performance, efficacy or safety
of its dietary supplement products unless,
at the time the claim is made, competent
and reliable scientific evidence exists
to substantiate each claim. Specifically,
Airborne is prohibited from saying “take
at the first sign of a cold symptom,”
and making other statements that imply Airborne
can diagnose, mitigate, prevent, treat or
cure colds, coughs, the flu, an upper respiratory
infection or allergies.
By law, advertisements for dietary supplements
like Airborne cannot make such drug claims
even if they can provide substantiation,
unless and until they have been approved
as a drug by the federal Food and Drug Administration.
Airborne
has not admitted to any wrongdoing and denies
the factual allegations asserted in the
Attorney General’s complaint.
Airborne
is the number one selling product in the
cold and cough aisles of major retailers.
Under the settlement agreement, Airborne
is prohibited from requiring, demanding,
or otherwise influencing where a retailer
places its products through direct affirmative
action. In addition, Airborne is prohibited
from marketing any product that contains
directions for use that would, if followed,
result in an individual ingesting 15,000
International Units of Vitamin A or more
per day.
In
addition to New Jersey, 31 other states
and the District of Columbia are party to
the Airborne settlement.
Deputy
Attorney General Nicholas Kant, assigned
to the Consumer Fraud Prosecution Section
within the Division of Law, handled the
Airborne matter on behalf of the state.
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