A Florida federal court has dismissed without prejudice claims that Chattem breached implied warranties by falsely advertising its ACT mouthwash as “remineralizing” tooth enamel. Foster v. Chattem, No. 14-346 (U.S. Dist. Ct., M.D. Fl., order entered July 23, 2014). The court denied the company’s motion to dismiss claims of unjust enrichment and violation of Florida’s Deceptive and Unfair Trade Practices Act, rejecting Chattem’s argument that it did not deceptively advertise ACT mouthwash because a reasonable consumer would not differentiate between “rebuilding” and “remineralizing” enamel.
The plaintiff’s warranty claims failed, the court said, because she was not in privity with Chattem. “[S]ome courts have held that direct contact between a purchaser and a manufacturer satisfied the privity requirement at the pleadings stage; however, direct contact in that sense refers to personal contacts between the purchaser and a representative of the manufacturer, not merely some contact between the purchaser and the manufacturer’s product or advertising,” the court noted.