Colgate must face false advertising claims over toothpaste tube recyclability

SAN FRANCISCO (CN) — A federal judge on Tuesday denied Colgate’s request to dismiss class action false advertising claims from consumers who say the company lies about the recyclability of their toothpaste tubes.

U.S. Magistrate Judge Joseph Spero ruled that it’s likely that consumers believe the tubes are recyclable because the tubes contain a statement that they are in a “first of its kind recyclable tube." But hardly any recycling facilities in California or in the U.S. will accept them.

The three named plaintiffs, Mikhail Gershzon, Kristin Della, and Jill Lienhard, all residents of California, claim that they purchased the toothpaste because they believed Colgate’s claims that they were recyclable and understood that this meant they would be able dispose of the tubes through their curbside recycling program.

The plaintiffs claim that if they had known their municipal recycling programs do not accept and recycle the tubes, they would not have purchased the product or would have paid less for it. They seek injunctive relief and damages.

According to the plaintiffs, Colgate “uniformly represents that the Colgate-brand products have a ‘recyclable tube’ in a conspicuous blue font on a white background,” with the “chasing arrows symbol that is also known as the universal recycling symbol," without any disclaimer that limits the claim of recyclability.

The plaintiffs claim that this misleading information is present on the packaging of several varieties of Colgate toothpaste, as well as on the packaging of Colgate’s Tom’s of Maine toothpastes. 

These claims are unlawful, the plaintiffs say, because nearly all municipal recycling programs and materials recovery facilities in the U.S. reject the products, and Colgate is aware that the toothpaste tubes will invariably end up in incinerators or landfills. The promises also violate the Federal Trade Commission’s “Green Guides,” which require marketers to support their environmental claim with a reasonable basis.

Colgate argued that there were two fundamental flaws in the plaintiffs’ complaint. One: that the Green Guides don't control consumers' understanding of the term "recyclable tube," which the company says is an "accurate representation of the intrinsic character of the products. And two: that Colgate’s claims about the products’ toothpaste tubes meet the Green Guides requirements because the tubes are compatible with the high-density Polyethylene #2 recycling stream, which is available to many consumers.

Colgate also claimed that to the extent that the Green Guides require qualifying language, it has met that requirement via “the disclosures available on the product websites and incorporated into the product packaging.”

Because the plaintiffs’ claims rely entirely on deceptive or misleading marketing practices, they must demonstrate that a reasonable consumer would be misled by the toothpaste's packaging. Colgate contends that is impossible because it's statements about recyclability are not false or misleading, and the tubes can be recycled in the same manner as other bottles and tubes in the high-density Polyethylene #2 recycling stream. The company says 87% of Americans can put such products in recycling bins."

Colgate also argued that its tubes are only rejected because of external market circumstances outside of its control.

But Spero rejected Colgate’s counterarguments.

“Colgate mischaracterizes the allegations in the [first amended complaint] when it makes the conclusory statement that plaintiffs merely allege that recycling facilities are ‘reluctant’ to accept their tubes for recycling and does not plausibly allege that facilities actually reject them for recycling. In fact, plaintiffs’ [first amended complaint] alleges repeatedly that virtually no recycling facilities in California or the United States accept their product for recycling," Spero wrote.

Spero also wrote that Colgate failed to prove that its claims are not misleading.

“Colgate does not explain why a reasonable consumer would not be equally likely to be misled by its claims of recyclability, regardless of the reason for rejecting the products, where the products are (allegedly) uniformly rejected by recycling facilities in California and the United States," he said.

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