Judge green-lights mouthwash lawsuit against Walgreen's

A federal judge in Florida has ruled that a class-action lawsuit filed against Walgreen's alleging false claims about certain mouthwash products can move forward, consumeraffairs.com reported.

In September 2010, the FDA issued warning letters to Johnson & Johnson, CVS, and Walgreen regarding three mouthwash products: Johnson & Johnson's Listerine Total Care Anticavity Mouthwash, CVS' Complete Care Anticavity Mouthwash, and Walgreen's Mouth Rinse Full Action. The companies have marketed these products with claims that these products remove plaque above the gumline or promote healthy gums.

While these products contain sodium fluoride, which the FDA has determined is effective in preventing cavities, the agency has not found this ingredient to be effective in removing plaque or preventing gum disease. Under federal law, a company cannot claim its product is effective in treating a disease unless those claims have been reviewed and approved by the FDA.

In November 2010, a class-action lawsuit was filed in the U.S. District Court for the Southern District of Florida by Howard Moss, charging Walgreens with promoting and charging a "significant price" for a mouth rinse that the company allegedly misrepresented.

On March 18, Judge James Cohn ruled that the lawsuit, which charges Walgreens with violating the Florida Deceptive and Unfair Trade Practices Act and with breach of warranty, can proceed.

Walgreens had challenged the lawsuit, claiming that the Food, Drug, and Cosmetic Act (FD&C Act) governs such questions and that the FD&C Act pre-empts state law, according to consumeraffairs.com.