NEW YORK SUPREME COURT – QUEENS COUNTY, DECISION OF 29 MARCH 2011, JOSHUA HIRSCH, ET AL. V. CADBURY ADAMS USA LLC, NO. 17063/2010, IAS PART 17

On 29 March 2011, the New York Supreme Court – Queens County dismissed a consumer class action complaint charging Cadbury, a division of Kraft Foods, with misleading consumers by claiming on product packaging that Trident XTRA Care gum “rebuilds teeth.” The proposed class would have included all New York purchasers of Trident XTRA Care gum from 6 July 2007 through the present, a group estimated to include tens of thousands of consumers. The court found that the complaint failed sufficiently to plead its claims.  

The class action complaint had included causes of action for violation of the New York consumer protection law and claims of unjust enrichment and breach of contract.

Agreeing with nearly every argument presented by Cadbury, Justice Kitzes found that the plaintiffs had failed to allege sufficiently that they had suffered any actual harm because the cost of the gum was not higher due to the challenged “rebuilds” claim and they did not suffer any physical damage to their teeth as a result of chewing the gum. The plaintiffs effectively conceded that the active ingredient in Trident XTRA Care gum does help strengthen and remineralize teeth, as promised.

These facts also proved fatal to their unjust enrichment claim.

The court also dismissed the breach of contract claim, finding no contractual privity between the manufacturer of the gum and the ultimate consumer. Judge Kitzes rejected the plaintiffs’ attempt to recast their breach of contract claim as one for breach of express warranty, noting that the plaintiffs had omitted such a cause of action from their amended complaint and could not turn statements on a product label into a contract between the manufacturer and the consumer.