Bermudez v. Colgate-Palmolive Co.

667 F.Supp.3d 24

Felix BERMUDEZ, individually and on behalf ofall others similarly situated, et al., Plaintiffs, v. COLGATE-PALMOLIVE COMPANY, Defendant.

1:21-cv-10988 (JLR)

United States District Court, S.D. New York

Signed March 31, 2023

Kevin Laukaitis, Laukaitis Law Firm LLC, Philadelphia, PA, Jonathan Shub, Shub Law Firm LLC, Haddonfield, NJ, for Plaintiffs Felix Bermudez, Kimberly Richardson.

Jonathan Shub, Shub Law Firm LLC, Haddonfield, NJ, for Plaintiffs Terri Corprew, Harold Nyanjom, Kellie Nyanjom, Robert Sumrell, Hector Gonzalez.

Farryal Siddiqui, Stephanie Michelle Shimada, Kirkland & Ellis LLP, New York, NY, Leonora Cohen, Robyn Eileen Bladow, Kirkland & Ellis LLP, Los Angeles, CA, for Defendant.

OPINION AND ORDER

JENNIFER L. ROCHON, United States District Judge:

Plaintiffs Felix Bermudez, Kimberly Richardson, Terri Corprew, Robert Sumrell, Hector Gonzalez, Harold Nyanjom, and Kellie Nyanjom (together, "Plaintiffs") bring this putative class action against Colgate-Palmolive Company ("Defendant"). Plaintiffs allege that Defendant's marketing of certain toothpaste products as "enamel safe" and promoting "whole mouth health," among other things, is false or deceptive because the inclusion of charcoal in the products renders them incapable of providing the advertised benefits. Now pending before the Court is Defendant's motion to dismiss Plaintiffs' First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendant's motion is GRANTED.

BACKGROUND

I. Factual Background

Defendant Colgate-Palmolive Company is a Delaware corporation with its principal place of business and headquarters in New York, New York. ECF No. 23 ("FAC") ¶ 38.¹ Defendant sells oral care products, including two toothpastes that contain charcoal: Colgate Total Whitening + Charcoal Toothpaste ("Total Charcoal") and Colgate Optic White with Charcoal Teeth Whitening Toothpaste ("Optic Charcoal" and, together with Total Charcoal, the "Products"). Id. ¶ 2. Defendant "markets, labels, brands, and sells the [Products] throughout the United States, including New York." Id. ¶ 39.

Plaintiffs are individuals who each purchased the Products in New York, New Jersey, California, Illinois, Connecticut, or Kansas.²

Defendant markets the Products as safe for tooth enamel and mouth health. The front label of the Total Charcoal package represents that the toothpaste provides "whole mouth health," and the front label of the Optic Charcoal package represents that it is "enamel safe." Id. ¶ 5. The FAC further alleges that the Total Charcoal package contains the phrase "total mouth health." Id. ¶¶ 5, 65, 67. Plaintiffs refer to these representations as the "Safety Claims." Id.³ The FAC depicts the Products' packaging as follows:

Image materials not available for display.

FAC ¶¶ 62, 64. The FAC alleges that Defendant also makes misrepresentations on its website, including about "the purpose and benefits of activated charcoal in its oral care products." Id. ¶¶ 68-69. For instance, Defendant represents on its website that Optic Charcoal is "good for daily use, enamel safe, and [that] the fluoride toothpaste provides protection against cavities." Id. ¶ 68. The FAC further alleges that Defendant "represented charcoal as having unique properties that added a special value." Id. ¶ 98.

Plaintiffs "reviewed the product information and images" when purchasing the Products, and "understood them as representations by Defendant that the Charcoal Toothpastes were as safe as advertised." Id. ¶ 25. The FAC alleges that Plaintiffs "were exposed to Defendant's uniform Safety Claims," "reasonably relied on the oft-repeated Safety Claims," and "purchased the Charcoal Toothpaste based on Colgate's Safety Claims." See, e.g., id. ¶¶ 90-91, 100.

The FAC alleges that Defendant's marketing is false or deceptive. Specifically, the FAC asserts that "[t]he consensus of respected dentists, researchers and industry experts weighs against the use of charcoal toothpastes because they are not safe to use, contrary to Defendant's Safety Claims." Id. ¶ 8. The FAC references several articles to show this consensus and that charcoal is harmful to tooth enamel and the mouth. See, e.g., ¶¶ 46-56. The FAC principally relies on a 2017 Journal of American Dental Association article (the "2017 JADA article"), 2019 British Dental Journal article (the "2019 BDJ article"), and 2015 Academy of General Dentistry study (the "2015 AGD study"). See id.⁴ Plaintiffs do not allege "that the representations at issue are unsubstantiated[,] but that the evidence affirmatively disproves them." Opp. at 12.

Plaintiffs "would not have purchased the Charcoal Toothpastes on the same terms had [they] known the Safety Claims were not true." See, e.g., FAC ¶ 25. The FAC alleges that Plaintiffs paid a "substantial price premium due to the false and misleading Safety Claims," see, e.g., ¶ 25, and were "damaged by the total purchase price" paid, id. ¶¶ 93-94.

II. Procedural History

Plaintiffs commenced this action on December 22, 2021. ECF No. 1. On April 18, 2022, Defendant filed a premotion letter requesting leave to file a motion to dismiss, detailing the grounds for Defendant's anticipated motion. ECF No. 14. Defendant relied heavily in that submission on Housey v. Procter & Gamble Co., No. 21-cv-02286 (NRB), 2022 WL 874731 (S.D.N.Y. Mar. 24, 2022) ("Housey" or "Housey I"), a recent decision dismissing with prejudice a case brought by Plaintiffs' counsel against another charcoal toothpaste manufacturer. ECF No. 14 at 2-3. Plaintiffs responded on April 21, 2022. ECF No. 15. On April 26, 2022, the Court granted Defendant leave to file its motion to dismiss, and afforded Plaintiffs leave to amend their Complaint to remedy any deficiencies. ECF No. 17.

In response, on June 9, 2022, Plaintiffs filed the FAC, asserting 12 claims on behalf of named Plaintiffs, a putative nationwide class, and putative sub-classes in New York, California, Illinois, Connecticut, and Kansas. See FAC ¶¶ 142, 153-286. The FAC asserts claims for: breach of express warranty on behalf of the nationwide class (Count 1); unjust enrichment on behalf of the nationwide class (Count 2); fraud on behalf of the nationwide class (Count 3); violations of the New York Deceptive Trade Practices Act, New York Gen. Bus. Law ("GBL") §§ 349, 350, et seq., on behalf of Plaintiffs Felix Bermudez and Kimberly Richardson, and the putative New York sub-class (Counts 4-5); violations of the California Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750, et seq., California False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500, et seq., and California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq., on behalf of Plaintiff Terri Corprew and the putative California sub-class (Counts 6-8); violations of the Illinois Consumer Fraud Act ("CFA"), 815 ILCS 505/1, et seq. and the Illinois Uniform Deceptive Trade Practices Act ("UDTPA"), ILCS §§ 510/2, et seq., on behalf of Plaintiff Robert Sumrell and the putative Illinois sub-class (Counts 9-10); violation of the Connecticut Trade Practices Act ("TPA"), C.G.S.A. §§ 42-110g, et seq., on behalf of Plaintiff Hector Gonzalez and the putative Connecticut sub-class (Count 11); and violation of the Kansas Consumer Protection Act ("CPA"), K.S.A. §§ 50-623, et seq., on behalf of Plaintiffs Harold Nyanjom and Kellie Nyanjom and the putative Kansas sub-class (Count 12). See generally FAC ¶¶ 153-286.

On August 29, 2022, Defendant filed its motion to dismiss. See MTD. Along with Defendant's notice of motion and memorandum of law in support, see Br., Defendant filed a Request for Judicial Notice in support of its motion, a Declaration of Robyn Bladow, and 16 exhibits, see ECF Nos. 28-29. On September 20, 2022, this case was reassigned to the undersigned. See ECF No. 31. Plaintiffs filed their memorandum of law in opposition to Defendant's motion to dismiss on October 13, 2022. See Opp. Defendant filed its reply memorandum of law in further support of its motion on November 8, 2022, see Reply, along with a Reply Declaration of Robyn Bladow and four additional exhibits, see ECF No. 35. On December 28, 2022, Defendant filed a Notice of Supplemental Authority, attaching the summary order issued by the Second Circuit Court of Appeals in Housey v. Proctor & Gamble Co., No. 22-888, 2022 WL 17844403 (2d Cir. Dec. 22, 2022) ("Housey II"), affirming the district court's decision in Housey I relied on by Defendant and cited extensively in the parties' briefs. See Supp. Notice.⁵

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The court must "accept all factual allegations as true and draw all reasonable inferences in the plaintiff's favor." DiFolco, 622 F.3d at 110-11 (quoting Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009)) (internal brackets omitted). But the court shall not "accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "Factual allegations must be enough to raise a right of relief above the speculative level," Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and "[t]his standard requires that the complaint allege 'more than a sheer possibility that a defendant has acted unlawfully' and more than 'facts that are merely consistent with a defendant's liability," In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 180 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). "Applying this standard is 'a context-specific task that requires the reviewing court to draw on its judicial experience and...