Texas AG Reaches Settlement With Dietary Supplement Company

December 19, 2008

Texas has joined 31 other states and the District of Columbia to resolve enforcement cases against Airborne Health Inc. and its operators, Victoria Knight-McDowell and Thomas John McDowell over claims their company’s dietary supplements cure or prevent certain diseases.


Under the multi-state agreement, approved earlier this week, Airborne is prohibited from continuing to such claims. The company’s cold prevention, sore throat and allergy remedies have not been recognized as approved drugs by the U.S. Food and Drug Administration.


Airborne marketed its products as over-the-counter remedies for illnesses. Because the FDA has not recognized Airborne’s dietary supplements as drugs, the company was charged with introducing unapproved drugs into commerce, which is a violation of the Texas Food, Drug and Cosmetic Act.


The state’s enforcement action against Airborne involved a referral the Office of the Attorney General received from the Texas Department of State Health Services.


Since 1997, Airborne has manufactured and marketed “Airborne Effervescent Health Formula,” also known as “Airborne Original,” a product containing 17 herbs and nutrients that are purportedly formulated to fight coughs and colds. Subsequently, the company expanded the brand name to include several additional tablet and powdered supplements.


Airborne’s marketing materials created the impression the products were approved over-the-counter drugs. That impression was bolstered by the placement of Airborne products on retail shelves next to FDA-approved cold remedies.


This week’s final judgment requires Airborne to remove all statements on its packaging and marketing materials that emphasize cold and allergy remedies that are equivalent to those for approved over-the-counter drugs. Airborne must revise all of its product labels to indicate that the contents are dietary supplements and not approved drugs.


Additionally, the company may not conduct or influence “product placement” efforts that attempt to place its products in retail stores’ “cough/cold” aisles near approved drugs. Also, Airborne’s advertisements may not use actors or cartoon characters that claim its products have disease-curing properties.

Under the agreement, Airborne must pay $7 million to compensate the states for attorneys’ fees and investigative costs.

Restitution for affected consumers was addressed in a settlement the defendants reached with the Federal Trade Commission and in a class action case.


InstantNewsWestu Staff

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