Personal Injury Law

Healthy Settlement From Airborne Class Action Lawsuit

By Jane Akre

You've seen the ads for Airborne, the herbal supplement created by teacher Victoria Knight-McDowell who was sick of getting sick from her students.

Well Airborne may be a miracle cure but it's also an expensive cure. The makers have agreed to pay $23.3 million to settle a false advertising lawsuit.

Since Airborne is classified as a "dietary supplement" it cannot make specific medical claims as a drug can under the FDA. But the Airborne package calls the supplement a "miracle cold buster" and that is a claim.

To do so, the makers must have supporting data.

Stephen Gardner, who heads the litigation group for the Center for Science in the Public Interest (CSPI), which joined in the action, tells IB News "Nothing shows Airborne will prevent a cold, period." 

The settlement results from a 2006 class action lawsuit filed by people who bought the effervescent tablets between May 2001 and December 2007.  Anyone can join in if they can produce their receipt.

Don't have a receipt? You can be reimbursed in the form of six packages.

Airborne CEO Elise Donahue tells ABC News that Airborne "helps your body build a healthy immune system. When you have a healthy immune system, then it allows your body, on its own, to fight off germs."  

Airborne includes herbs from Eastern medicine such as Chinese Vitex, Forsythia, Lonicera, Ginger and Echinacea as well as electrolytes, amino acids and vitamins/minerals as well as selenium, zinc, glutamine and lycine. 

The late two-time Nobel prize winning scientist, Linus Pauling was a supporter of vitamin C and lycine as a supplement and to fight heart disease. Airborne health has a medical advisory board specializing in microbiology.

Still the word cold is not off the package.

There's no credible evidence that what's in Airborne can prevent colds or protect you from a germy environment," said CSPI senior nutritionist David Schardt, who reviewed Airborne's claims. "Airborne is basically an overpriced, run-of-the-mill vitamin pill that's been cleverly, but deceptively, marketed."

CSPI's Gardner, a former assistant attorney general in New York and Texas, CSPI says they step in when the FDA and Federal Trade Commission fail to do its job.

As more food companies make nutritional claims such as Miller Beer's "Sparks"  and Coca-Cola's "Enviga" which promise energy and weight loss, CSPI plans to go after them too.

Airborne may work Gardner admits, but he tells IB News "You can't make a claim without substantiation at the time you make it that it's accurate. The law is that even if you are eventually proven right, you still violated the law because you made a representation without substantiation. The horse has to come before the cart."

As more food companies begin treading into the risky yet lucrative business of nutritional claims, such as Anheuser-Busch's "Spykes" energy drink and Cocoa Cola's "Enviga" which promises weight loss, CPSI says it plans to go after them too.

Plaintiff David Wilson was also represented by the California law firms of Wasserman, Comden and Casselman LLP of Tarzana and Fazio Micheletti of San Ramon. 

The law firms will be asking the court for attorney's fees at a hearing in July. Generally firms ask for 20 to 25 percent of the settlement.    

Airborne has created a special web site to help customers collect. Customers have until September 15, 2008 to file a claim. 

Don't feel too sorry for the former second grade teacher McDowell.

Airborne surpassed $100 million in sales in 2006. #

Full post as published by InjuryBoard on March 05, 2008 (boomark / email).