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Airborne’s Legal Remedy: Nothing to Sneeze At

airborne.jpgEveryone has probably seen the commercials for Airborne — the cold remedy “developed by a school teacher who was sick of catching colds in class and on airplanes.”

Clearly, this sounds like a product that one would take to prevent catching a cold.

Even their website back in 2001 gave that impression and more:

“Crowded environments like Airplanes, Offices, and Schools are spawning grounds for germs that cause colds and sickness! AIRBORNE’S unique natural formula of seven Herbal Extracts, Antioxidants, Electrolytes, and Amino Acids, offers maximum vitamin and herbal protection for hours! Plus its natural ginger component helps fight nausea caused by motion sickness. Take at the first sign of a cold symptom or before entering crowded, potentially germ-infested places!  [It then quotes a user as saying:] A miracle cold buster!”

And a few years later they touted the results of a clinical trial on their website.

*MOUSE PRINT: Though there is page after page of mumbo jumbo, it does suggest a reduction in symptoms by those who took Airborne. However, only 48 people actually took the product.

Fast forward to 2006. ABC reported that Airborne’s clinical trial was conducted neither by scientists nor doctors, but rather by two guys hired to conduct this particular test. The company then dropped references to it on its website.

Fast forward again to 2008. Airborne just settled a class action lawsuit claiming that the company misrepresented the product, and it agreed to pay over $23 million back to purchasers. [Get claim form here.]

The settlement agreement is lacking at least one key provision, however:

*MOUSE PRINT: There is no requirement that they refrain from making unsubstantiated claims in the future.

August 2008 Update: The FTC just entered into a settlement with the company to prevent them from making unsubstantiated health claims in the future, and to pay a total of $30 in settlement to aggrieved purchasers.

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Act Fluoride: Twice the Size, Half the Strength

actsmall.jpgWhen MrConsumer’s dentist advised him that a new cavity might be in its earliest stages of development, he checked out fluoride rinses that claim to restore minerals to weak spots in tooth enamel and prevent cavities.

The granddaddy of brands is Act, formerly owned by Johnson & Johnson, and recently acquired by a company called Chattem.

Act comes in two sizes: 18 ounce and 33.8 ounce. Luckily for MrConsumer, Rite Aid had the large size on sale last week, and there was a rebate. It was a seeming no-brainer to buy the big size.

actmedium.jpg

Upon closer examination of the ingredients label, MrConsumer found a shocker:

*MOUSE PRINT: The larger bottle has less than half the strength of fluoride compared to the smaller one.

actstrength.jpg

Now who would ever expect that a different size bottle would have a different strength of the active ingredient? In fact, if you look at the larger bottle, there is a “2x” on it. Without reading carefully, one might assume that “2x” means twice the strength or twice the size, but certainly never half the potency. A closer examination reveals that is says “2x a day”. Okay, so you can use the product twice daily.

As it turns out, the company says the smaller bottle is a once a day product, and the larger one is a twice a day product. Apparently you get the equivalent amount of fluoride using the diluted version two times a day.

Nonetheless, with such an inconspicuous but important difference, countless customers in the habit of using the product once a day may buy the large size, rinse as usual, and unwittingly not get the protection they expect.

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LifeLock: Just Say You’re a Victim

LifeLock is a service that aims to protect your personal information from ID theft for $120 a year and they back up their claim with a $1 million guarantee (discussed last week here).

What are some of the things they do to protect you? They order a copy of your credit report annually from the major credit bureaus. They opt you out of pre-screened offers of credit. And they put a fraud alert on your credit reports.

Of course, these are all things you could do yourself for free. And to their credit, after they mention each of these things on their website, they indicate you could do these things too for free but why bother with the hassle. (It frankly is so surprising to see this level of candor, that it makes MrConsumer suspicious that some Attorney General somewhere didn’t require this of them in the past for this company or a prior company.)

Now, as to their putting a fraud alert on your credit report, depending on the circumstances, this may or may not be kosher. Under federal law, only victims of ID theft or those who believe they are about to become a victim of fraud may place such an alert into their credit report:

“Upon the direct request of a consumer, or an individual acting on behalf of or as a personal representative of a consumer, who asserts in good faith a suspicion that the consumer has been or is about to become a victim of fraud or related crime, including identity theft, a consumer reporting agency described in section 1681a (p) of this title that maintains a file on the consumer and has received appropriate proof of the identity of the requester shall— (A) include a fraud alert in the file of that consumer …”

So how in the world can this company represent to the credit bureaus that you have been victim or are about to be?

*MOUSE PRINT: Buried in LifeLock’s terms and conditions is this provision:

“18. … You additionally agree that you have a good faith suspicion that you have been or are about to become a victim of fraud or related crime, including identity theft, that you want to obtain fraud alerts under 15 U.S.C. § 1681c-1, and that you will notify LifeLock immediately if and when you no longer have such a good faith suspicion.”

Unless you read the fine print, you probably would not have known that you were being asked to attest to something that may not be true — that you are a current or imminent future victim of ID theft.

This bit of duplicity has not gone unnoticed. Just a few days ago, Experian, one of the big three credit reporting agencies filed suit against LifeLock for this very practice.

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