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Attorney General Ellen F. Rosenblum

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AG FILES $7 MILLION AGREEMENT WITH AIRBORNE HEALTH OF FLORIDA FOR DECEPTIVE ADVERTISING

December 18, 2008

Attorney General Hardy Myers Files Agreement With Airborne Health Settling Charges Of Deceptive Advertising.

Company to pay $7 million and change marketing practices.

Attorney General Hardy Myers today announced a $7 million, multi-state Agreement with Airborne Health of Floridasettlement with Airborne Health, Inc., the Florida-based maker of the Airborne Effervescent Health Formula, and its founders and current owners, Victoria Knight-McDowell and her husband Thomas John McDowell. The Stipulated General Judgment includes the largest payment to date to Attorneys General from a producer of dietary supplements. The company admitted no violation of law.

The agreement settles allegations that the McDowells and their company made unsubstantiated and unlawful claims that their products prevent colds, remedy symptoms of colds, and fight allergies.

Airborne - Original is the number one selling dietary supplement in its category and is sold at most major retailers. It consists of Vitamin A, E, zinc, selenium and large doses of Vitamin C. Today's settlement covers all Airborne products including Airborne - Original, 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, Airborne Power Pixies, or any substantially similar product the McDowells or their company may produce in the future.

"The company's claims had no competent, scientific support," Myers said. "And even worse, the company failed to adequately warn vulnerable consumers, such as pregnant women, of potential health risks."

Oregon and the other states alleged that the McDowells made health-related claims in the marketing, packaging, advertising, offering and selling of their line of dietary supplements that were not substantiated by reliable and competent scientific evidence at the time the claims were made. Oregon and the other states also alleged that the company owners explicitly and implicitly claimed 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 at the time the claims were made.

The participating states also alleged that the McDowells failed to adequately warn consumers about potential health risks to select populations, including pregnant women, under previous 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 the settlement, the defendants have agreed not to make any express or implied claim about the health benefit, performance, efficacy or safety of their dietary supplement products unless at the time the claim is made competent and reliable scientific evidence exists to substantiate each claim. Specifically, the defendants are prohibited from saying "take at the first sign of a cold symptom." The company is also prohibited from implying that 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 claim to have diagnostic or therapeutic effects, even if they can provide substantiation, unless and until they have been approved as a drug by the U. S. Food and Drug Administration.

Airborne is the number one selling product in the cold and cough aisles of major retailers. Under the settlement, the defendants are prohibited from requiring, demanding, or otherwise influencing where a retailer places their products through direct affirmative action.

In addition, the defendants are 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. While the scientific literature is not completely uniform with some studies placing the toxicity levels of Vitamin A at 100,000 International Units of Vitamin A, some studies place the toxicity levels of Vitamin A at much lower amounts - particularly for pregnant women and children. The multi-state settlement follows settlements the defendants reached with the Federal Trade Commission (FTC) and with private litigants in a private class action, Wilson v. Airborne, Inc., et al, filed in federal district court in the Central District of California. Under the terms of the class action settlement, $23.5 million in restitution is available to consumers who filed claims before September 15, 2008. Under the settlement reached with the FTC, an additional $6.5 million would be added to the fund if the number of claims exceeds $23.5 million.

Consumers who have complaints about unsubstantiated health or advertising claims or any consumer matter should contact the Attorney General's consumer hotline at (503) 378-4320 (Salem area only), (503) 229-5576 (Portland area only), or toll-free at 1-877-877-9392. DOJ is online at www.doj.state.or.us.

Contact:

Jan Margosian, (503) 947-4333 (media line only) jan.margosian@doj.state.or.us |
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