Are You Looking For Breath Assure?

If you're just dying to get your hands on a product called Breath Assure, or BreathAsure as it was legally known, it's likely you prefer your foods loaded with onion and garlic, or spiced up in some other way. (Any die-hard sub sandwich and pizza fans out there?)



Although there were many customers who swore that BreathAsure was the real deal, the product has been off the market for 6 or 7 years now. The company that manufactured it is still in business, but it no longer produces Breath Assure. Today, they produce a product called MintAsure. But before you try it, you really need to know why BreathAsure is no longer available.

The South African researchers who came up with the Breath Assure concept believed that eating spicy foods such as those containing onion or garlic resulted in a type of bad breath that originates in the digestive system. Their solution to the problem took the form of a capsule filled with a mixture of sunflower and parsley seed oil.

In the early 1990's when Anthony Raissen was searching for a solution to his own problem with bad breath, he heard about a group of chemists in his native South Africa who had developed a way to eliminate bad breath resulting from eating spicy foods such as garlic and onions. Raissen pulled together a group of investors, and bought the rights to the product.

From 1992 until 1999, Raissen mass-marketed his product across the United States. Through heavy use of radio advertising, he built a strong brand awareness for the Breath Assure product. In addition to the attention his product was getting from consumers, it was getting attention from pharmaceutical giant Warner-Lambert, manufacturer of products such as Certs, Clorets, Listerine, and Dentyne.

On May 21, 1999, The United States District Court For The District Of New Jersey heard arguments in Civil Case No. 98-cv-01940, Warner-Lambert Company v. BreathAsure, Inc.

The court recognized that BreathAsure had heavily promoted its product as being effective against bad breath. Much of BreathAsure's advertising told the reader to "stop masking bad breath" with products that "just cover-up bad breath." The ongoing theme was that the capsules worked effectively at the source of bad breath which made them superior to products that simply masked or covered bad breath such as gum, mints and mouthwash.

In its civil action, Warner-Lambert sought to permanently enjoin BreathAsure from advertising that its BreathAsure products are effective breath fresheners. The company also sought a permanent injunction against use of the name "BreathAsure" based upon its contention that the name itself communicates a false and misleading message. Warner-Lambert did not seek monetary damages.

Despite BreathAsure's claims that its capsules are superior to products that merely mask bad breath, evidence produced during the trial showed that bad breath originates in the mouth, not in the stomach.

On the third day of the bench trial on Warner-Lambert's civil action, BreathAsure admitted that evidence presented during the trial demonstrated that BreathAsure and BreathAsure-D are not effective in reducing bad breath. BreathAsure even agreed to stop advertising that its capsules were effective breath fresheners. However, BreathAsure continued to insist on its right to use the trade names "BreathAsure" and "BreathAsure-D.

At the completion of the bench trial, the District Court ruled that the trade names did, in fact, misrepresent the products' qualities. But the court also found that Warner-Lambert had not met its burden of establishing the likelihood of future injury from BreathAsure's continued use of the product names.

The result was that even though the makers of the Breath Assure product would have to change the claims in its advertising, it would still be able to manufacture the product under the BreathAsure and BreathAsure-D brand names.

However, in February 2000, the United States Court of Appeals for the Third Circuit determined that Warner-Lambert had demonstrated a reasonable likelihood of injury from BreathAsure's advertising, and Warner-Lambert's belief that it would be harmed if the defendant continued to refer to its products as "BreathAsure" was just as reasonable.

The Circuit Court based its decision on the fact that the name falsely tells the consumer that he or she has assurance of fresher breath when ingesting one of the defendant's capsules, which was not true. The Circuit Court held that the District Court erred in concluding that the plaintiff failed to establish the likelihood of injury necessary to enjoin use of BreathAsure's trade names, and that the District Court abused its discretion in refusing to enjoin use of those names.

The ruling by the Circuit Court meant that the Breath Assure manufacturers would no longer be able to market their product under the BreathAsure and BreathAsure-D names. It also sent the company into Chapter 11 Bankruptcy.

In September 2000, makers of the Breath Assure product bounced back with MintAsure, essentially a BreathAsure capsule with a heavy mint coating.

MintAsure is available today from numerous sources. In my opinion, however, their advertising still threatens to cross the line established by the courts. For example: "MintAsure™ gives you fresh breath instantly, even if you eat garlic. It's the capsule you swallow plus a high-powered breath mint for your mouth, all in one, for the confidence to be close! MintAsure is all-natural with parsley seed oil on the inside and a powerful mint coating on the outside. Give yourself kissing clean breath instantly."

Use it - don't use it. The decision's yours. Just be forewarned that MintAssure has been found to be effective for only about an hour and does not eliminate bad breath... It just masks it.


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