U.S. court dismisses dry mouth product lawsuit

A U.S. court dismissed an Illinois man's lawsuit against CVS Pharmacy in which he claimed its dry mouth dietary supplement discs were falsely advertised as promoting a healthy mouth when the product's high acidity may erode or demineralize teeth.

The U.S. District Court for the Northern District of Illinois, Eastern Division, granted CVS' motion to dismiss John Swiatek's claims of violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, a state law that prohibits deception, fraud, and related claims; as well as breach of express warranty, fraud, and unjust enrichment.

Furthermore, the court granted CVS' request to voluntarily dismiss Swiatek's claims of multistate consumer fraud; breach of the implied warranties and negligent misrepresentation claim; and denied relief under Magnuson-Moss Warranty Act, a U.S. stature that governs consumer product warranties; and for any claim for injunctive relief, according to the court ruling filed on March 28.

In part, the court dismissed the case because Swiatek failed to prove any of the allegations, including that statements on the product's label could be inferred that the discs stimulate saliva, mitigate salivary gland disorders, and treat disease. The court found these claims unreasonable, noting that a reasonable consumer would not infer that the product "soothes dry tissue" and "promotes a healthy mouth" to mean that it mitigates salivary gland disorders, according to the court ruling.

Furthermore, the product contained a disclaimer that the discs were not evaluated by the U.S. Food and Drug Administration and not intended to treat, cure, or prevent any disease, according to the court.

In March 2023, Swiatek, who purchased and used CVS' dry mouth discs, filed a lawsuit against the pharmacy, claiming its representation that the product is beneficial to oral health and the alleviation of dry mouth was misleading. Regardless of whether the product can alleviate symptoms of dry mouth by stimulating saliva, as its packaging states, the pharmacy failed to warn people that the product's high acidity may contribute to dental erosion, demineralization, greater tooth sensitivity, and higher incidences of cavities due to its pH level, the lawsuit claims.

The lawsuit states the product has a pH of 5.3, which is much lower than the pH of enamel and root dentin. Studies have shown that acidic oral moisturizers with pH levels less than 6.7 can erode tooth structure.

Additionally, the suit accuses CVS of violating the U.S. statute by claiming that its dry mouth discs can mitigate, treat, or cure salivary gland disorders, according to the suit.

Swiatek claims he used the product for three years, which is advertised as a "dietary supplement," without knowing the product was detrimental to his oral health. He states he would not have bought it if he had known that the pharmacy was misrepresenting the product, according to the suit.