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FOR IMMEDIATE RELEASE
December 16, 2008
Grounding Airborne: McKenna announces $7 million settlement with maker of popular fizzing tablet

“Truth in advertising is nothing to sneeze at,” AG says

SEATTLE – Airborne is the top-selling product in the cold and cough aisles of major retailers. But it’s not a cold-buster, say state attorneys general. Just in time for the sniffling season, attorneys general in 32 states plus the District of Columbia announced that they, too, have reached a settlement with the makers of the popular effervescent tablet.

 “Truth in advertising is nothing to sneeze at, which is why state attorneys general brought this lawsuit,” Attorney General Rob McKenna said. “Airborne landed itself in hot water by marketing itself as a cold prevention remedy, claims that have since been disproven.”

 “Unfortunately, there is no cure for the common cold,” added Assistant Attorney General Bob Lipson, of the Attorney General’s Consumer Protection Division. “Not chicken soup. Not orange juice. Not fizzy tablets.”

Washington will receive about $150,000 from the $7 million settlement, which resolves allegations that Airborne Health, Inc., of Florida, and its founders and current owners, Victoria Knight-McDowell and her husband Thomas John McDowell, made claims that weren’t substantiated by reliable and competent scientific evidence.

The states alleged that the defendants explicitly and implicitly claimed to sell a germ fighter and a remedy for cold prevention, sore throats and allergies, despite a lack of adequate proof that the products could perform as advertised.

They also alleged that the defendants failed to adequately warn consumers that an early version of Airborne posed potential health risks to select populations, including pregnant women. The old formula contained 5,000 International Units (IU) of Vitamin A per dose, compared to 2,000 IU today.

Airborne and its owners denied any wrongdoing but agreed to the settlement terms, which prohibit them from making claims about the health benefits, performance, efficacy or safety of their dietary supplement products unless those claims can be substantiated by existing competent and reliable scientific evidence.

Specifically, the defendants are prohibited from saying “take at the first sign of a cold symptom,” and other claims that imply that Airborne can prevent or cure colds, coughs, flu, upper respiratory infections or allergies. Dietary supplements must be approved as a drug by the FDA in order to make drug-related claims.

The defendants are also prohibited from influencing where a retailer places their products on store shelves.

Lastly, they are prohibited from marketing any product that directs an individual to ingest 15,000 IU of Vitamin A or more per day. Some studies place the toxicity levels of Vitamin A at 100,000 IU; other studies place the toxicity levels at much lower amounts – particularly for pregnant women and children. If a consumer followed Airborne’s current instructions, they would ingest three tablets totaling 6,000 IU of Vitamin A per day.

Airborne reached two prior settlements concerning similar claims: Wilson v. Airborne, Inc., et al, filed in federal district court in the Central District of California in November 2007 and an August 2008 settlement with the Federal Trade Commission. Those settlements provided restitution to consumers.

The states’ settlement does not include restitution, but provides for the strong injunctive provisions that limit how Airborne markets its products in the future. Under the agreement, the $7 million may be used for general consumer education, programs directed at prescription and over-the-counter drug abuse, attorneys’ fees and legal costs and other purposes allowed by state laws.

The following states participated in the settlement: Alaska, Arkansas, California, Connecticut, Delaware, the District of Columbia, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Washington and Wisconsin. 

DOCUMENTS:

Airborne Complaint

Airborne Consent Decree

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Media Contact: Kristin Alexander, Media Relations Manager – Seattle, (206) 464-6432

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