Weingartner et al v. Colgate-Palmolive Company

Filing 45

ORDER by Judge Joseph C. Spero denying 30 Motion to Dismiss FAC. The motion hearing set for February 9, 2024 at 9:30 a.m. is vacated. The Case Management Conference set for the same date will remain on calendar but will be conducted at 2:00 p.m. instead of 9:30 a.m. (jcslc1, COURT STAFF) (Filed on 2/6/2024)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
KRISTIN DELLA, et al.,

7

Case No. 23-cv-04086-JCS

Plaintiffs,
8
v.
9
COLGATE-PALMOLIVE COMPANY,

10

Defendant.

ORDER DENYING MOTION TO
DISMISS FIRST AMENDED CLASS
ACTION COMPLAINT
Re: Dkt. No. 30

United States District Court
Northern District of California

11
12
13

I.

INTRODUCTION
Plaintiffs bring a putative class action under California state law and the Class Action

14
15

Fairness Act, 28 U.S.C. § 1332(d)(2) (“CAFA”) against Defendant Colgate-Palmolive Company

16

(“Colgate”) based on statements on Colgate and Tom’s of Maine toothpaste packaging about the

17

recyclability of the toothpaste tubes these products use. According to Plaintiffs, these statements

18

are false and misleading because while it is theoretically possible to recycle the tubes, only a

19

“miniscule” number of recycling facilities in California and the United States actually accept them

20

for recycling. Presently before the Court is Colgate’s Motion to Dismiss First Amended Class

21

Action Complaint (“Motion”). The Court finds that the Motion can be decided without oral

22

argument and therefore vacates the hearing set for February 9, 2024 pursuant to Civil Local Rule

23

7-1(b). The Case Management Conference set for the same date will remain on calendar but

24

will be conducted at 2:00 p.m. instead of 9:30 a.m. For the reasons stated below, the Motion is

25

DENIED.1

26
27
28

1

The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28
U.S.C. § 636(c).

United States District Court
Northern District of California

1

II.

BACKGROUND

2

A.

3

The subject of Plaintiffs’ claims are “Colgate and Tom’s of Maine toothpaste labeled with

First Amended Complaint

4

the claims ‘Recyclable Tube,’ ‘First of Its Kind Recyclable Tube,’ and/or the universal recycling

5

symbol” (collectively, the “Products”). First Amended Complaint (“FAC”) ¶ 1. Plaintiffs allege

6

that the Products come in numerous varieties and use toothpaste tubes made of high-density

7

polyethylene or No. 2 plastic (“HDPE”). FAC ¶ 18. These tubes differ from “traditional”

8

toothpaste tubes, made from sheets of plastic laminate consisting of “different plastics sandwiched

9

around a thin layer or aluminum[,]” which are “universally banned and rejected by [materials

10

recovery facilities] and recycling programs throughout California and the United States” because

11

“they are difficult to sort, separate, and process into reusable material.” FAC ¶¶ 31-32. Because

12

the toothpaste tubes used in the Products “are made entirely of plastic, they are theoretically not as

13

difficult to recycle as traditional toothpaste tubes.” FAC ¶ 33. Thus, in announcing its new

14

toothpaste tube in 2019, Colgate “heralded [it] as a major innovation and announced it as a first-

15

of-its-kind, truly recyclable toothpaste tube.” Id.

16

According to Plaintiffs, Colgate “uniformly represents that the Colgate-brand Products

17

have a ‘Recyclable Tube’ in a conspicuous blue font on a white background[,]” with the “chasing

18

arrows symbol [that] is also known as the universal recycling symbol” above the “Recyclable

19

Tube” claim, and “provides no disclaimer on the packaging that in any way limits their claims of

20

recyclability.” FAC ¶¶ 18-19, 23. They provide an image of the front and back label of a sample

21

Colgate-brand Product, Colgate Total, to support this allegation, and allege that Colgate “makes

22

substantially identical representations on Colgate Cavity Protection Toothpaste, Colgate Baking

23

Soda & Peroxide Whitening Toothpaste, Colgate MaxFresh Toothpaste, Colgate MaxClean

24

Toothpaste, Colgate Total Toothpaste, Colgate Optic White Toothpaste, and Colgate Sensitive

25

Toothpaste.” Id. ¶¶ 19, 20, 22. Plaintiffs allege further that “[a]t most, newer versions of the

26

Products invite consumers to visit a website by stating: ‘Learn more about our recyclable tube at:

27

colgate.com/goodness[,]’[b]ut nothing about this disclosure limits the unqualified recyclability

28

claim.” FAC ¶ 20.
2

1

Plaintiffs allege that Colgate “makes similar representation on its Tom’s of Maine

2

toothpastes.” FAC ¶ 24. In particular, the back label of the Tom’s Products “advertises that the

3

Product has ‘THE FIRST OF ITS KIND RECYCLABLE TUBE.’” Id. Plaintiffs allege that

4

Colgate’s “packaging and advertising also invites consumers to ‘[l]earn more at

5

tomsofmaine.com[ ]’” but that that website “only includes a short video regarding the purported

6

recyclability of the Products” and an FAQ, at “the very bottom of the Tom’s of Maine website”

7

that states, “[g]etting your tube ready for recycling is easy: simply squeeze out as much of the

8

toothpaste from the tube as you can, replace the cap, and place the tube in your recycling bin.”

9

FAC ¶ 27. Plaintiffs provide an image of the front and back label of a sample Tom’s Product.

10

United States District Court
Northern District of California

11

FAC ¶ 24.
Plaintiffs allege that the claims described above are “false, deceptive, misleading and/or

12

unlawful” because “virtually all of the municipal recycling programs and materials recovery

13

facilities (‘MRFs’) in California and the United States reject the Products.” FAC ¶ 1. The reasons

14

for this, according to Plaintiffs, are that (1) recycling facilities “are unable to effectively

15

distinguish between Defendant’s purportedly recyclable tubes and conventional toothpaste tubes

16

which cannot be recycled, and (2) the Products cannot be fully emptied, and the leftover

17

toothpaste contaminates the recyclable waste stream, which makes the Products unrecyclable and

18

jeopardizes the recyclability of truly recyclable materials.” FAC ¶ 4.

19

In support of these allegations, Plaintiffs point to “a recent Bloomberg article [the

20

“Bloomberg Article”] questioning the accuracy of Defendant’s claims” in which “Waste

21

Management, Inc., one of the largest recycling and disposal companies in the Nation, commented

22

that the ‘tubes are not in its list of acceptable items.’” FAC ¶¶ 5, 35. Plaintiffs quote the article as

23

stating that “[f]or many facilities in the US, the company’s new recyclable tubes are

24

indistinguishable from those made from more common plastics, prompting recyclers to reject

25

them.” FAC ¶ 35. According to Plaintiffs, in the same article, “Peter Keller, an executive at

26

Republic Services, another major solid waste management company[,] explained that ‘[a]nother

27

concern is leftover toothpaste causing contamination.’” Id. ¶¶ 5, 40. Plaintiffs allege that a

28

consultant at the Association of Plastic Recyclers, Sandeep Kalkarni, is quoted in the Bloomberg
3

1

Article as stating “that ‘[t]he old tubes could cause contamination if consumers put them in the

2

recycling bin, so it’s easier for recycling facilities to reject toothpaste tubers across the board.’ ”

3

FAC ¶ 35. Plaintiffs allege that cumulatively, Waste Management, Inc. and Republic Services

4

“provide recycling services to more than 40% of consumers in California and approximately 25%

5

of the United States.” Id. ¶ 5.

United States District Court
Northern District of California

6

Plaintiffs allege that “[t]here is an insurmountable contamination risk caused by leftover

7

toothpaste” because “[e]ven when consumers know it is required, it is impossible for them to

8

remove all of the toothpaste from the tubes before recycling them.” FAC ¶ 39. As a result,

9

Plaintiffs allege, “even if a recycling facility accepts irregularly shaped HDPE plastic, the tubes

10

are still not accepted because they are not clean and free of contaminants.” Id. Plaintiffs further

11

allege that “[c]ontaminated materials are one-hundred percent not recyclable” and “[m]ore

12

egregiously, contamination degrades the quality of recyclables, which often causes materials that

13

would otherwise be recycled to be landfilled.” FAC ¶ 41.

14

Plaintiffs allege that Colgate “knows that the Products almost invariably end up in landfills

15

or incinerated because recycling facilities do not accept them.” FAC ¶ 6. They allege that Colgate

16

acknowledged in the Bloomberg Article “that acceptance might still be limited and advised

17

consumers to check with local community programs.” FAC ¶ 42. Plaintiffs also quote a video

18

released by Colgate “explaining that its ‘continu[ing] the work beyond technical recyclability of

19

the tube, towards acceptance of tubes in recycling systems globally.’” FAC ¶ 6 (emphasis in

20

original).

21

The three named Plaintiffs, Mikhail Gershzon, Kristin Della, and Jill Lienhard, who reside

22

in California, allege that they purchased the Products because they believed Colgate’s claims that

23

they were recyclable and understood that this meant they would be able recycle the tubes through

24

their curbside recycling program. FAC ¶¶ 8-10, 57-59. Plaintiffs allege that if they had known

25

when they bought the Products that their municipal recycling programs do not accept and recycle

26

the Product – and that “recycling facilities for the Products are not available to a substantial

27

majority of consumers or communities in California” – they would not have purchased the product

28

or at a minimum, they would have paid less for them. FAC ¶¶ 57-59. Plaintiffs allege that they
4

1

“are likely to be repeatedly presented with false or misleading information when shopping and

2

they will be unable to make informed decisions about whether to purchase [Colgate’s] Products”

3

because “the design and composition of the Products may change over time [ ] [b]ut as long as

4

[Colgate] may use the phrase ‘Recyclable Tube’ and similar representations on Products that are

5

not recyclable as reasonable consumers understand the term, then when presented with [Colgate’s]

6

packaging, Plaintiffs continue to have no way of determining whether the recyclability

7

representations are in fact true.” FAC ¶ 60.

8

United States District Court
Northern District of California

9

Plaintiffs allege that Colgate’s conduct violates California public policy, California law,
and the FTC’s “Green Guides[,]” which are incorporated into California law. FAC ¶¶ 44-53.

10

According to Plaintiffs, the Green Guides “require marketers to support their environmental claim

11

with a reasonable basis before they make the claims.” FAC ¶ 52 (citing 16 CFR § 260.2). With

12

respect to claims about recycling, Plaintiffs allege that the Green Guides “only permit marketers to

13

make unqualified recyclable claims ‘[w]hen recycling facilities are available to a substantial

14

majority of consumers or communities where the item is sold.’” Id. (quoting 16 CFR §

15

260.12(b)(1)) (emphasis added in FAC). According to Plaintiffs, “ ‘The term “substantial

16

majority,” as used in this context, means at least 60 percent.’ ” Id. (quoting 16 CFR §

17

260.12(b)(1)). Plaintiffs further allege that under the Green Guides, “ ‘[w]hen recycling facilities

18

are available to less than a substantial majority of consumers or communities where the item is

19

sold, marketers should qualify all recyclable claims.’” Id. (quoting 16 CFR § 260.12(b)(2); and

20

citing 16 CFR § 260.3(a)).

21

Plaintiffs assert the following claims in the FAC: 1) violation of the Consumers Legal

22

Remedies Act (“CLRA”), California Civil Code §§ 1750, et seq.; 2) false advertising under

23

California’s False Advertising Law (“FAL”), California Business and Professions Code §§ 17500,

24

et seq.; 3) fraud, deceit and/or misrepresentation; 4) negligent misrepresentation; and 5) unfair,

25

unlawful and deceptive trade practices under California’s Unfair Competition Law (“UCL”),

26

Business and Professions Code, §§ 17200, et seq.. Plaintiffs seek injunctive relief and damages as

27

to the claims where damages are available.

28
5

1
2

United States District Court
Northern District of California

3

B.

Contentions of the Parties
1. Motion

In the Motion, Colgate seeks dismissal of all of Plaintiffs’ claims under Rule 12(b)(6) of

4

the Federal Rules of Civil Procedure, arguing that there are two “fundamental flaws” in Plaintiffs’

5

claims. Id. at 2-3. First, it contends, “the Green Guides do not control reasonable consumers’

6

understanding of the term ‘recyclable tube,’ which is an accurate representation of the intrinsic

7

character of the Products.” Id. at 2. The second flaw in Plaintiffs’ FAC, Colgate asserts, is that

8

Colgate’s claims about the Products’ toothpaste tubes meet the requirements of the Green Guides

9

“because the tubes are compatible with the HDPE #2 recycling stream, which is widely available

10

to the vast majority of consumers across California and nationwide.” Id. at 3. Consequently,

11

Plaintiffs’ UCL claim “(and their remaining claims to the extent the Court views the Green Guides

12

as relevant to the reasonable consumer inquiry)” fails to the extent it is based on failure to follow

13

the Green Guides, according to Colgate. Id. Colgate further asserts that to the extent the Green

14

Guides require qualifying language, it has met that requirement “via the disclosures available on

15

the Product websites and incorporated into the Product packaging.” Id. Finally, Colgate argues

16

that even if Plaintiffs’ claims are not dismissed in their entirety, their request for injunctive relief

17

should be dismissed, both because Colgate’s packaging has been updated to include a “check

18

locally” disclosure on each carton and because Plaintiffs “are now aware that market forces may

19

impact their local recycling facilities’ acceptance of the Products, and they can confirm such

20

acceptance before purchasing the Products in the future[.]” Id. at 3-4.

21

Colgate asserts that “all of Plaintiffs’ claims (save for their claim under the ‘unlawful’

22

prong of the UCL . . .) are premised on allegedly ‘deceptive or misleading marketing,’” and

23

therefore, in order to prevail on their claims, they must “ ‘demonstrate that a “reasonable

24

consumer” is likely to be misled by the representation.’ ” Id. at 11-12 (quoting Moore v. Trader

25

Joe’s Co., 4 F.4th 874, 881 (9th Cir. 2021); and citing Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th

26

Cir. 2016) (applying reasonable consumer standard to FAL, CLRA, and UCL “unfair” and

27

“fraudulent” claims); Glen Holly Entm’t, Inc. v. Tektronix Inc., 343 F.3d 1000, 1015 (9th Cir.

28

2003) (affirming dismissal of negligent misrepresentation claim where plaintiff failed to
6

1
2

Colgate argues that Plaintiffs cannot meet this requirement, asserting that its statements

3

about recyclability are not false or misleading because its “first-of-its-kind toothpaste tube

4

composed primarily of HDPE #2 plastic . . . can be recycled in the same manner as other

5

recyclable bottles and tubes in the #2 HDPE recycling stream, ‘which 87% of Americans can put

6

in recycling bins.’ ” Id. at 12 (quoting Spelman Decl., Ex. 1 (Bloomberg Article)). In other words,

7

Colgate asserts, its claims are accurate because they are truthful and accurate “description of the

8

Products’ inherent characteristic.” Id. at 13.

9

United States District Court
Northern District of California

sufficiently plead a “reasonable consumer” would rely on statements at issue)).

Colgate points to Swartz v. Coca-Cola Co., No. 21-4643, 2022 WL 17881771 (N.D. Cal.

10

Nov. 18, 2022 as “instructive in this regard.” Id. According to Colgate, in that case the plaintiffs

11

asserted that “the ‘100% recyclable’” claim on various plastic water bottle labels was ‘false

12

and misleading because most plastic bottles are not recycled,’ and instead ‘end up in landfills or

13

incinerators due to a lack of recycling capacity and a lack of demand for recycled plastics.’ ” Id.

14

(quoting Swartz, 2022 WL 17881771, at *1). The court dismissed the plaintiffs’ claims, however,

15

finding “that ‘[n]o reasonable consumer would understand “100% recyclable” to mean that the

16

entire product will always be recycled[ ]’ ” and reasoning that “[i]n everyday usage, ‘recyclable’ is

17

an adjective that means capable of being recycled (e.g., ‘the plate is made of recyclable paper’), or

18

a noun that denominates an object that can be recycled (e.g., ‘the students raised funds by selling

19

recyclables to disposal facilities’).” Id. (quoting Swartz, 2022 WL 17881771, at *1). Colgate

20

highlights the court’s statement that “[i]f anything, a reasonable consumer would understand that

21

making an object recyclable is just the first step in the process of converting waste into

22

reusable material, and not a guarantee that the process will be completed.” Id. (quoting Swartz,

23

2022 WL 17881771, at *1). Colgate notes that in a subsequent decision in Swartz, the court found

24

that the plaintiffs’ amended complaint did not cure the problem and dismissed the case without

25

leave to amend. Id. at 13-14 (citing Swartz v. Coca-Cola Co., No. 21-4643, 2023 WL 4828680, at

26

*3 (N.D. Cal. July 27, 2023)).

27
28

Colgate also relies on a case decided in the Northern District of Illinois, Curtis v. 7-Eleven,
Inc., in which the court held that claims about the recyclability of certain plates and cups used by
7

United States District Court
Northern District of California

1

7-Eleven were not misleading because “the term ‘recyclable’ ‘simply means that the product is

2

capable of being recycled. It is about [the] product itself, meaning its intrinsic character. It is not

3

about what happens to the product after it goes into the recycling bin.’” Id. at 14 (quoting No. 21-

4

6079, 2022 WL 4182384, at *1, 13 (N.D. Ill. Sept. 13, 2022)). According to Colgate, “[t]he court

5

rejected that theory of liability, dismissing the complaint ‘to the extent that Plaintiff contends that

6

the products are not recyclable because of the unavailability of recycling facilities’ given that ‘7-

7

Eleven never represented anything about the likelihood of recycling’ and ‘[t]he limited availability

8

of recycling facilities does not mean that the plates and cups [at issue in the litigation] are not

9

recyclable.’” Id. (quoting 2022 WL 4182384 at *13, 17). Colgate calls “significant[ ]” “the Curtis

10

court[’s] express[ ] reject[ion] [of] the plaintiff’s attempt to rely on the Green Guides

11

to establish consumer deception regarding the term ‘recyclable,’ noting that ‘[i]t is not clear how

12

useful those Green Guides are when evaluating the views of a reasonable consumer at a

13

convenience store. Your average consumer at 7-Eleven probably doesn’t have the FTC’s policy

14

statements at his or her fingertips when picking up a bag of foam plates for the backyard BBQ.’”

15

Id. (quoting 2022 WL 4182384 at *16).

16

Finally, Colgate points to a provision in California’s Public Resources Code reflecting that

17

the legislature has “recognized that ‘materials that are trending toward meeting the [Green Guides]

18

Requirements’ (but do not yet meet those requirements) may be considered recyclable given that

19

‘the continued increase in the collection, sorting, and viable responsible end market development .

20

. . [can] be disrupted by a loss of a recyclable designation.’” Id. at 15 (quoting Cal. Pub. Res.

21

Code § 42061(a)(3)(B)).

22

Colgate argues that Swartz and Curtis are on point because Plaintiffs do not dispute that

23

the Products use tubes made from materials that are “capable of being recycled in the well-

24

established recycling stream for HDPE #2 plastic” and instead base their claims on “third-party

25

acceptance of the recyclable products for collection, sortation, and/or reprocessing[,]” which is

26

beyond Colgate’s control. Id. (emphasis in original). Furthermore, Colgate asserts, “it is in the

27

interests of consumers and the recycling industry alike for Colgate to identify the Products as

28

recyclable to educate stakeholders on the Products’ recyclability and hasten widespread
8

1

acknowledgement of the Products’ suitability for the existing HDPE #2 plastic recycling stream.”

2

Id. (citing Cal. Pub. Res. Code § 42061(a)(3)(B)).

3
4

plausible because the only fact alleged in support of this allegation is “a statement from Peter

5

Keller, Vice President of Sustainability at Republic Services, Inc., identifying ‘leftover toothpaste’

6

as a ‘concern’ with respect to the recyclability of toothpaste tubes.” Id. (citing FAC ¶ 40; Spelman

7

Decl., Ex. 1).

8

United States District Court
Northern District of California

Colgate argues that Plaintiffs’ allegations relating to the “contamination risk” are not

Colgate argues that a further reason the claims on the Product packages are not misleading

9

is that the packaging invites consumers to learn more on their websites, “where Colgate provides

10

transparent information regarding the market transition to recyclable tubes and advises consumers

11

to check their localities to confirm acceptance of toothpaste tubes during the transition period.” Id.

12

at 16. This information must be considered when evaluating whether the claims on the package

13

are misleading, Colgate contends. In particular, Colgate asserts, to determine whether a claim is

14

misleading, “product packaging should be examined in its full context because it would be

15

unreasonable to cherry-pick discrete statements to prove deception.” Id. at 16-17 (quoting Weiss v.

16

Trader Joe’s, 838 F. App’x 302, 303 (9th Cir. 2021); and citing Moore, 4 F. 4th at 883; Knowles

17

v. ARRIS Int’l PLC, 847 F. App’x 512, 513 (9th Cir. 2021); McGinity v. Proctor & Gamble Co.,

18

69 F.4th 1093, 1099 (9th Cir. 2023)).

19

According to Colgate, “in determining whether product labels are misleading or deceptive,

20

multiple courts have considered statements from a product’s website where a link to that website

21

was included on a product packaging, reasoning that such statements are incorporated by reference

22

into the product and thereby the plaintiff’s complaint.” Id. at 17 (citing Stewart v. Kodiak Cakes,

23

LLC, 537 F. Supp. 3d 1103, 1121-22 (S.D. Cal. 2021)). Furthermore, Colgate contends, the Court

24

need not accept Plaintiffs’ “conclusory allegations that ‘reasonable consumers do not visit

25

websites before making ordinary every day purchases” and that a “simple reference to a website

26

does nothing to cure the unqualified recyclability claims on the Products.’” Id. (quoting FAC ¶

27

28). Colgate asserts that in fact, “courts frequently dismiss claims premised on allegedly

28

misleading labeling where the label contains qualifying language, reasoning that ‘a reasonable
9

1

consumer . . . cannot look at only one statement to the exclusion of everything else and claim he

2

has been misled.’” Id. (quoting Bobo v. Optimum Nutrition, Inc., No. 14-2408, 2015 WL

3

13102417, at *5 (S.D. Cal. Sept. 11, 2015); Garcia v. Sony Comp. Entm’t Am., LLC, 859 F. Supp.

4

2d 1056, 1065 (N.D. Cal. 2012)).
With respect to the allegations in the FAC that Plaintiffs Gershzon and Zella purchased

United States District Court
Northern District of California

5
6

Colgate Total Toothpaste in August 2022 and October 2022, respectively, Colgate offers images

7

of the packaging it contends was used for Colgate Total Toothpaste at that time, which directs

8

people to the websites of the two products for “further information.” Id. at 17-18 (citing FAC ¶¶

9

57-58; Spelman Decl., Ex. 4). It also offers pages from the Colgate website with FAQs that

10

“conveyed extensive information about Colgate’s ‘transition’ to recyclable tubes and disclosed

11

Colgate’s work to educate stakeholders regarding the ‘compatibility of recyclable tubes within the

12

current recycling system,’ and to ‘shar[e] the technology’ for its ‘new recyclable tube’ ‘to help

13

turn “recyclable” into widely accepted and “recycled.” ’ ” Id. at 18 (quoting Spelman Decl., Exs.

14

5–6). Colgate emphasizes that “[t]he FAQs also advised (multiple times) that, ‘[d]uring this

15

transition phase, your community may not yet accept tubes for recycling. Consumers should check

16

with their local community programs.’” Id. (emphasis in original).
Similarly, as to the allegation that Plaintiff Lienhard purchased Tom’s Antiplaque and

17
18

Whitening Toothpaste in August 2022, Colgate points out that the statement “THE FIRST OF ITS

19

KIND RECYCLABLE TUBE” was printed on the back of the product’s label, along with a link to

20

the Tom’s of Maine website, tomsofmaine.com, where consumers were directed to “learn more”

21

regarding the recyclability of the tube. Id. at 18-19 (citing FAC ¶¶ 29, 57).2 Therefore, Colgate

22

asserts, none of the named Plaintiffs has pointed to any false or misleading claims on the Products

23

they purchased when the full context is considered. Id. Colgate further asserts in a footnote that to

24

the extent Plaintiffs Gershzon and Lienhard allege that they made additional purchases “[o]n

25
26
27
28

According to Colgate, the other Product Lienhard alleges she purchased, Tom’s Rapid Relief ,
does not contain any recyclability claims on the carton and therefore Lienhard does not have
standing to assert claims based on her purchase of that product. Id. at 18 n. 12; see also Motion
at 8 (“The Tom’s Rapid Relief carton had (and still has) no recyclability claim. The
carton simply states in small text on the side of the carton that Tom’s ‘develop[ed] the first of its
kind recyclable tube.’ See Spelman Decl., Exs. 9, 13.”).
10
2

1

several occasions over the past four years[,]” FAC ¶¶ 57, 59, these allegations fail under Rule

2

9(b).3 Id. at 18 n. 11.
Colgate also argues that the claims made on the Product labels are in compliance with the

United States District Court
Northern District of California

3
4

requirements of the Green Guides and therefore Plaintiffs’ UCL unlawful claim fails to state

5

claim. Id. at 19-21. In particular, Colgate argues that because “the Products are compatible with

6

the HDPE #2 recycling stream, for which recycling facilities are ‘available’ to 87% of consumers”

7

– a fact that Plaintiffs do not dispute – Colgate’s claims “more than satisfy[y] the ‘substantial

8

majority’ threshold” established in the Green Guides. Id. at 20 (citing 16 C.F.R. § 260.12(b)(1)).

9

Colgate asserts that “this is not a case where the size, shape, or other physical characteristic of the

10

product allegedly renders it non-recyclable through existing recycling facilities.” Id. Instead,

11

Colgate contends, Plaintiffs allege that recycling facilities reject the Products because they are

12

allegedly unable to distinguish recyclable from nonrecyclable toothpaste tubes.” Id. (citing FAC ¶

13

4) (emphasis in original). Thus, Colgate asserts, its “recyclable tubes can be recycled through ‘an

14

established recycling program’ available to the vast majority of consumers.” Id. (quoting 16

15

C.F.R. § 260.12(a)).
Moreover, Colgate argues, any requirement for qualifying language under the Green

16
17

Guides is met by the disclosures on the websites included on the Product packaging. Id. at 21.

18

According to Colgate, Lizama v. H&M Hennes & Mauritz LP, No. 22-1170, 2023 WL 3433957

19

(E.D. Mo. May 12, 2023) is “instructive” on this question because in that case, the court relied on

20

qualifying statements made on the defendant’s website to reject the plaintiffs’ allegation that the

21

defendant’s claims about its “conscious choice” program violated the Green Guides. Id.
Finally, Colgate argues that Plaintiffs’ claim for injunctive relief should be dismissed as

22
23

moot and because Plaintiffs lack standing to seek such relief. Id. at 21-25. According to Colgate,

24

Plaintiffs’ claim for injunctive relief is moot because “the packaging for the Products with

25

recyclable claims now includes a disclosure advising consumers that their “community may not

26

yet accept tubes for recycling,” so they should ‘check locally’ to confirm.” Id. at 21 (citing

27
28

3

Because Colgate raised this issue only in a footnote and neither side meaningfully addressed this
question, the Court declines to rule on this challenge.
11

1

Spelman Decl., Exs. 7, 12.). Furthermore, Colgate asserts, the Court should give no weight to

2

Plaintiffs’ allegations that “[a]t most, newer versions of the Products invite consumers to visit a

3

website by stating: ‘Learn more about our recyclable tube at colgate.com/goodness’” and that

4

“nothing about this disclosure limits the unqualified recyclability claims[,]” because these

5

allegations “conflict directly with the judicially noticeable images” supplied by Colgate. Id.

6

(quoting FAC ¶ 21 and citing Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000); In re

7

Google Inc., No. 13-2430, 2013 WL 5423918, at *5 (N.D. Cal. Sept. 26, 2013)).

United States District Court
Northern District of California

8

With respect to standing, Colgate argues that “there is no threat of future injury because

9

Plaintiffs are on notice that (a) the Products may not yet be accepted by recycling facilities in their

10

communities due to market forces; and (b) they can check if their local facilities accept toothpaste

11

tubes for recycling before purchasing the Products in the future.” Id. at 3-4. Colgate points to

12

Plaintiffs’ allegations that “they learned their respective municipal recycling programs do ‘not

13

accept toothpaste tubes for recycling[ ]’ ” and argue that in light of those allegations, “Plaintiffs

14

cannot plausibly allege that they are unable to determine at the point of purchase if recycling

15

facilities that recycle the Products are available to a substantial majority of consumers or

16

communities in California’ or that they would be misled in future Product purchases.” Id. at 24

17

(citing FAC ¶¶ 57-60).

18

To support its position, Colgate points to Sinatro v. Barilla America, Inc., in which “the

19

plaintiffs sought injunctive relief in connection with their claim that the defendant’s labeling of its

20

pasta as ‘ITALY’S #1 BRAND OF PASTA’ was misleading because the pasta was not

21

manufactured in Italy.” Id. (citing 635 F. Supp. 3d 858, 865, 873-874 (N.D. Cal. 2022)).

22

According to Colgate, the court granted the defendant’s motion to dismiss the injunctive relief

23

claim, concluding that “the plaintiffs could not ‘reasonably claim that they [would] be deceived by

24

the challenged representations now that they know where the products are manufactured.’ ” Id.

25

(citing 635 F. Supp. 3d at 875).

26

Finally, in support of the Motion, Colgate has offered sixteen exhibits and asks the Court

27

to take judicial notice of them. See generally Declaration of Kate T. Spelman in Support of

28

Defendant Colgate-Palmolive Company’s Motion to Dismiss First Amended Class Action
12

1

Complaint (“Spelman Decl.”); Defendant Colgate-Palmolive Company’s Request for Judicial

2

Notice in Support of Motion to Dismiss First Amended Class Action Complaint (“RJN”).

United States District Court
Northern District of California

3

2. Opposition

4

Plaintiffs agree with Colgate that as to all of their claims, they must plead that Colgate’s

5

statements and omissions were likely to deceive a reasonable consumer in order to state a claim.

6

Opposition at 4-5. They reject Colgate’s argument that they have not met that requirement,

7

however, asserting that they allege plausible claims based on the allegations that: 1) Plaintiffs

8

“saw the claim ‘Recyclable Tube’ on the labeling of the Products and reasonably understood that

9

the Products were recyclable[;]” 2) “municipal recycling programs where Plaintiffs live do not

10

accept the Products for recycling[;]” and 3) “there are no recycling programs that are capable of

11

recycling the Products in California where Plaintiffs purchased the Products.” Id. at 5 (citing FAC

12

¶¶ 4, 43, 57–59). According to Plaintiffs, “[c]ourts have routinely found similar allegations

13

sufficient to plead an actionable misrepresentation.” Id. (citing Smith v. Keurig Green Mt., Inc.

14

(“Smith I”), 393 F. Supp. 3d 837, 842 (N.D. Cal. 2019); Hanscom v. Reynolds Consumer Prods.

15

LLC (“Hanscom I”), No. 21-cv-03434-JSW, at *9 (N.D. Cal. Oct. 1, 2021); Mattero v. Costco

16

Wholesale Corp., 336 F. Supp. 3d 1109, 1117 (N.D. Cal. 2018)).

17

Plaintiffs further assert that Colgate’s statements are “presumptively deceptive” under the

18

Green Guides, which are incorporated into California law through the Environmental Marketing

19

Claims Act (“EMCA”). Id. at 5. In particular, according to Plaintiffs, “it is presumptively

20

deceptive to market a Product as recyclable ‘[w]hen recycling facilities are [not] available to a

21

substantial majority of consumers or communities where the item is sold.’” Id. (quoting 16 C.F.R.

22

§ 260.12(b)(1) (emphasis added in Plaintiffs’ brief). Plaintiffs further assert, “[t]he term

23

‘substantial majority,’ as used in this context, means at least 60 percent.” Id. (citing 16 CFR §

24

260.12(b)(1)).

25

Plaintiffs contend their position finds support in Smith I, which involved “facts [that]

26

closely parallel” the facts here. Id. In Smith I, the plaintiffs “alleged that the defendant’s

27

coffee pods were falsely and deceptively labeled as recyclable” because although “the pods

28

were made of a polypropylene (#5), which is a material that is technically recyclable . . . recycling
13

1

facilities could not recycle the pods because their equipment was incapable of sorting the pods

2

from unrecyclable materials.” Id. (citing 393 F. Supp. 3d at 842). According to Plaintiffs, the facts

3

of Smith I were also similar to the allegations here because in that case, the plaintiffs “alleged that

4

the products were not recyclable because of the contamination risk caused by the coffee grounds

5

in the pods.” Id. Plaintiffs contend the court in Smith I, “consistent with the Green Guides, held

6

that the claim was actionable and had the tendency to deceive consumers because, even though

7

polypropylene (#5) is technically recyclable, the pods could not actually be recycled by

8

established recycling programs.” Id. (citing 393 F. Supp. 3d at 847).

United States District Court
Northern District of California

9

Plaintiffs also contend Hanscom I supports their position. Id. at 7. In that case, according

10

to Plaintiffs, “the plaintiffs alleged that the defendant’s trash bags were deceptively labeled as

11

‘Recycling Bags’ which led reasonable consumers to believe that the products were recyclable and

12

suitable for recycling.” Id. (citing Hanscom I, No. 4:21-cv-03434, ECF No. 41 at 1–2). As in this

13

case, Plaintiffs assert, the plaintiffs in Hansom I alleged that the products were “unrecyclable even

14

though they were made of LDPE plastic film, which is theoretically recyclable but non-recyclable

15

in practice.” Id. Also similar to the facts here, Plaintiffs contend, the plaintiffs in Hanscom I

16

“alleged that the products were classified as a contaminant and were banned by recycling

17

programs because they easily get caught in machinery and actively undermine the recycling

18

process.” Id. According to Plaintiffs, the court in Hanscom I, “applying sections 260.12(a) and

19

260(d) held that ‘Plaintiff has plausibly alleged that the recycling claim is prohibited under the

20

FTC’s Green Guides.’ ” Id. (quoting Hanscom I, No. 4:21-cv-03434, ECF No. 41 at 12–15).

21

Plaintiffs argue that Colgate’s theory of “intrinsic” recyclability is inconsistent with

22

California law. Id. at 8-10. First, they assert that under the Green Guides “a product is

23

‘Recyclable’ when ‘it can be collected, separated, or otherwise recovered from the waste stream

24

through an established recycling program for reuse or use in manufacturing or assembling another

25

item.’ ” Id. at 8 (quoting16 C.F.R. § 260.12(a) (emphasis added in Plaintiffs’ brief). According to

26

Plaintiffs, “[t]he word ‘can’ must be read in conjunction with the language ‘through an established

27

program for reuse.’ It is not enough that a product theoretically can be recycled as Colgate argues;

28

it must be capable of being recycled by an established recycling program (i.e., a non-theoretical
14

1

program).” Id. Plaintiffs contend “the FTC explicitly affirmed this standard when it interpreted

2

section 260.12(a) in the FTC Green Guides Statement of Basis and Purpose: ‘[t]o make a non-

3

deceptive unqualified claim, a marketer should substantiate that a substantial majority of

4

consumers or communities have access to facilities that will actually recycle, not accept and

5

ultimately discard, the product.’” Id. (emphasis added in Plaintiffs’ brief). Plaintiffs further

6

contend Colgate’s “strictly theoretical definition of recyclability in § 260.12(a), based on the

7

technical recyclability of a product, would also render the ‘substantial majority’ language in §

8

260.12(b)(1) void, which violates first principles of statutory construction.” Id. at 8-9 (citing 16

9

C.F.R. § 260.12(b)(1)).

United States District Court
Northern District of California

10

Plaintiffs also point to the statement in the Green Guides that “[a]n item that is made from

11

recyclable material, but, because of its shape, size, or some other attribute, is not accepted in

12

recycling programs, should not be marketed as recyclable.” Id. at 9 (quoting 16 C.F.R. §

13

260.12(d)). Plaintiffs argue that this guidance applies here for two reasons. First, the shape of the

14

products – which is allegedly similar to unrecyclable toothpaste tubes– is one of the reasons they

15

are not accepted by recycling programs. Id. (citing FAC ¶ 31–35). Second, the difficulty of

16

properly cleaning the tubes, which risks contamination of the waste stream, is an “other attribute”

17

that allegedly makes the Products nonrecyclable. Id. (citing FAC ¶ 39).

18

Plaintiffs reject Colgate’s reliance on Swartz I and Swartz II, arguing that the Swartz case

19

is distinguishable. Id. at 9-10. According to Plaintiffs, that case involved plastic water bottles

20

labeled as “100% Recyclable[,]” which the plaintiffs asserted was misleading because “a total of

21

28% of each bottle (including the labels and caps) could not be recycled.” Id. at 10 (citing Swartz

22

II, No. 21-cv-04643-JD, 2023 U.S. Dist. LEXIS 130246, at *9, 11). The plaintiffs conceded,

23

however, “that the bottles met the definition of recyclable under the Green Guides[,]” Plaintiffs

24

assert, and therefore, “the question was whether the addition of the ‘100%’ caused the defendants’

25

‘Recyclable’ claim to become deceptive.” Id. at 9-10. According to Plaintiff, the court in Swartz

26

“acknowledged that the Green Guides turned on whether a product “can be recycled by [an]

27

existing recycling program.” Id. at 10 (citing Swartz I, No. 21-cv- 04643-JD, 2022 U.S. Dist.

28

LEXIS 209641, at *4). Plaintiffs note, however, that the Green Guides are “silent on the use of
15

1

the language ‘100%.’” Id. In any event, Plaintiffs argue, the court in Swartz ultimately dismissed

2

the Second Amended Complaint “because the plaintiffs had not pleaded enough facts to plausibly

3

support that the labels and cap were not actually being recycled by recycling facilities in

4

California.” Id. (citing Swartz II, No. 21-cv-04643-JD, 2023 U.S. Dist. LEXIS 130246, at *8).
Plaintiffs argue that here, in contrast to Swartz, they have alleged “specific facts regarding

United States District Court
Northern District of California

5
6

why the Products cannot be recycled” (“because the Products look identical to non-recyclable

7

items and cannot be effectively distinguished and the Products are unrecyclable contaminant[,]”

8

id. (citing FAC ¶¶ 4, 31–43)) and details that render these allegations plausible, including “a

9

Bloomberg Article ([FAC] ¶ 5), quotes from representatives of the two largest waste

10

management companies in the country ([FAC] ¶¶ 5, 40), a nonprofit database of recycling

11

programs ([FAC] ¶ 43), the recycling website San Francisco and the websites of Republic and

12

Waste Management (FAC] ¶ 36–37, 43), and Colgate’s own admissions that it is ‘continu[ing] the

13

work beyond technical recyclability’ and . . . ‘that acceptance [of the Products] may still be

14

limited[,]” ([FAC] ¶ 6, 42).” Id.

15

Plaintiffs further contend that Curtis v. 7-Eleven, Inc., is “easily distinguished” because in

16

Illinois the Green Guides do not have the weight of law and are “merely persuasive.” Id. (citing

17

No. 21-cv-6079, 2022 U.S. Dist. LEXIS 164850, at *1 (N.D. Ill. Sep. 13, 2022)). Plaintiffs argue

18

further that the court in Curtis engaged in “specious reasoning” when it rejected the Green Guides

19

standards “because reasonable consumers do not have the Green Guides at their fingertips when

20

shopping at a convenience store.” Id. (citing 2022 U.S. Dist. LEXIS 164850, at *44). Plaintiffs

21

reason:

22
23
24
25
26
27
28

Although reasonable consumers are not necessarily aware of the exact
standards contained in the Green Guides, the FTC has determined
that, in its expertise, reasonable consumers expect that there is a 60%
or greater chance that a product labeled as ‘recyclable’ can be
recycled by their local recycling program (i.e, more probable than
not). See 16 C.F.R. § 260.1 (explaining that the Green Guides provide
the ‘Commission’s view on how reasonable consumers likely
interpret certain claims.’). Even if the Green Guides are not
mandatory in Illinois, Curtis was wrongly decided because the court
effectively held, as a matter of law, that no reasonable consumer could
understand “recyclable” in the manner expressed by the FTC in the
Green Guides. At minimum, the plaintiff’s allegations regarding how
reasonable consumers understood the recyclable claims were
16

plausibly supported by the Green Guides and this should have created
a question for the trier of fact.

1
2
3

Plaintiffs also reject Colgate’s reliance on Swartz and Curtis for the proposition that for

4

“equitable reasons[,]” “Colgate should not be held responsible for its deceptive representations”

5

because the recyclability of its Products is “tied to forces and circumstances well beyond

6

defendants’ control[.]” Id. (quoting Motion at 15). Plaintiffs argue that “Colgate’s labeling,

7

which is what Plaintiffs’ claims challenge, is completely within Colgate’s own control.” Id.

8

(emphasis in original).

9

United States District Court
Northern District of California

Id. at 11.

Plaintiffs also reject Colgate’s argument that its website disclosures “cure” its

10

misrepresentations, arguing that “[i]t is manifestly unreasonable that a consumer would see

11

Colgate’s unambiguous ‘Recyclable Tube’ claim, see the fine-print reference to

12

‘learn more’ at colgate.com/goodness, visit the website on his or her smart phone while standing

13

in a grocery store aisle, and then review the entire website to verify that the ‘Recyclable Tube’

14

claim is true.” Id. at 12. It also notes that “the webpage addresses for the FAQs that Colgate

15

offers as evidence that it effectively disclaimed its ‘Recyclable Tube’ claims through its website

16

do not match the webpage addresses that it prints on its packaging.” Id. at 12 n. 10 (citing

17

Spelman Decl., Exs. 5 (www.colgate.com/en-us/power-of-optimism/faq), 6 (https://

18

www.colgate.com/en-us/our-mission/sustainability/faq), 10 (www.tomsofmaine.com/

19

ourpromise/caring-for-the-planet/recyclable-tube), 11 (same)). Therefore, Plaintiffs contend, “a

20

consumer would have to thoroughly scour multiple pages of Colgate’s website to find the FAQs

21

and the disclosures.” Id.

22

Plaintiffs argue that courts in this Circuit “invariably reject” similar arguments, pointing to

23

the Ninth Circuit’s holding in Williams v. Gerber Prods. Co., that “reasonable consumers should

24

[not] be expected to look beyond misleading representations on the front of the box to discover the

25

truth from the ingredient list in small print on the side of the box.” Id. (quoting 552 F.3d 934, 939

26

(9th Cir. 2008)). Plaintiffs also cite Hernandez v. Radio Sys. Corp., No. ED CV 22 1861 JGB

27

KKX, 2023 WL 4291829, at *8 (C.D. Cal. May 10, 2023) and Cisco Sys. Inc., No. 18-cv-07576-

28

CRB, 2019 U.S. Dist. LEXIS 212028, at *25 to support its argument that reasonable consumers
17

1

are not expected to read the totality of a product’s website and online manuals before buying the

2

product. Id.
As to Colgate’s citation to Cal. Pub. Res. Code § 42061(a)(3)(B) in support of its position,

3
4

Plaintiffs contend that section “empowers the California Department of Resources Recycling and

5

Recovery to provide an exemption from the substantial majority standard for products that are

6

trending toward acceptance by 60% recycling facilities” but that “Colgate has received no such

7

exemption from the California Department of Resources and Recycling and Recovery.” Id. at n.

8

9.

United States District Court
Northern District of California

9

Plaintiffs rejects as misleading Colgate’s reliance on Stewart v. Kodiak Cakes, LLC, 537 F.

10

Supp.3d 1003, 1120 (S.D. Cal. 2021) to suggest that statements on its websites are incorporated

11

into the Product labels. Id. at 13. According to Plaintiffs, “[t]he portion of Stewart that Colgate

12

quotes is a discussion regarding whether particular labels were incorporated by reference by the

13

plaintiff’s complaint.” Id.

14

Plaintiffs also reject Colgate’s argument that “learn more” language on the Product labels

15

is qualifying language. Id. at 13 (citing Motion at 24). Plaintiffs argue that “nothing in this

16

language is qualifying because it does not alert consumers that they would find additional

17

information on Colgate’s website that in any way limits its unambiguous front label

18

claim.” Id. In contrast, Plaintiff asserts, the case cited by Colgate, Bobo v. Optimum Nutrition,

19

Inc., No. 14CV2408 BEN (KSC), 2015 U.S. Dist. LEXIS 187233, at *10 (S.D. Cal. Sep. 11,

20

2015), involved language that clearly qualified the claim that was alleged to be misleading, that

21

the product was “100 % WHEY.” Id. In particular a label also included the language “DOUBLE

22

RICH CHOCOLATE” flavored and “100% OF THE PROTEIN FROM WHEY,” clarifying that

23

“100% WHEY” did not mean that there were no other ingredients in the product. Id. (citing 2015

24

U.S. Dist. LEXIS 187233, at *10).

25

Likewise, Plaintiffs contend, Lizama v. H&M Hennes & Mauritz LP, No. 4:22 CV 1170

26

RWS, 2023 U.S. Dist. LEXIS 83704, at *1 (E.D. Mo. May 12, 2023) is distinguishable because in

27

that case, the plaintiffs affirmatively alleged that they had visited the defendant’s website to learn

28

about the “conscious choice” label and predicated their deceptive practices claims on statements
18

United States District Court
Northern District of California

1

they found on the website. Id. at 14-15. In addition, Plaintiffs assert, the claims in that case

2

involved different provisions of the Green Guides than the ones at issue in this case. Id.

3

Plaintiffs also contend their claims are adequately pled based on allegations that Colgate’s

4

omissions amounted to fraudulent concealment. Id. at 15-16. In particular, “Plaintiffs allege that

5

Colgate’s omissions are contrary to representations it actually made.” Id. at 15 (citing FAC

6

¶¶ 82, 92, 96, 101, 121). According to Plaintiffs, “Colgate affirmatively states that the Products

7

have a ‘Recyclable Tube.’” Id. (citing FAC ¶¶ 1,19–25). “However, contrary to that assertion,

8

Colgate fails to disclose that the Products ‘contaminate[] the recyclable waste stream, which

9

makes the Products unrecyclable and jeopardizes the recyclability of truly recyclable materials.’”

10

Id. (citing FAC ¶¶ 4–5, 33–43). These allegations are sufficient to plead fraudulent concealment,

11

Plaintiffs contend. Id. (Rushing v. Williams-Sonoma, Inc., No. 16-cv-01421-WHO, 2016 U.S.

12

Dist. LEXIS 108657, at *21 (N.D. Cal. Aug. 15, 2016); Rutledge v. Hewlett-Packard Co., 190

13

Cal. Rptr. 3d 411, 421 (Cal. Ct. App. 2015)).

14

Finally, Plaintiffs contend they have “adequately alleged that Colgate’s practice of

15

marketing the Products as having a ‘Recyclable Tube,’ while omitting material information

16

regarding the Products’ true recyclability, constitutes ‘unfair’ trade practice” under the UCL each

17

of the three tests that apply to such claims. Id. at 16-17.

18

Plaintiffs reject Colgate’s challenge to its claim for injunctive relief. Id. at 17-23. With

19

respect to Colgate’s mootness argument, Plaintiffs contend Colgate’s position fails “because (1)

20

the disclaimer on Colgate’s updated packaging is illegal and inadequate and (2) even it was

21

adequate, Colgate has not met its heavy evidentiary burden to prove that the label change is

22

permanent.” Id. at 18. On the first point, Plaintiffs point to the Green Guides requirement that

23

“the lower the level of access to an appropriate facility, the more strongly the market should

24

emphasize the limited availability of recycling for the product.” Id. (quoting 16 C.F.R. §

25

260.12(a)(2)). According to Plaintiffs, the examples offered in the Green Guides to illustrate this

26

requirement establish that Colgate’s vague disclaimer that “communit[ies] may not yet accept

27

tubes for recycling” runs afoul of this guidance. Id. In particular, Plaintiffs point to the following

28

statement in the Green Guides: “For example, if recycling facilities are available to slightly less
19

1

than a substantial majority of consumers or communities where the item is sold, a marketer may

2

qualify a recyclable claim by stating: ‘This product [package] may not be recyclable in your area.’

3

” Id. (quoting 16 C.F.R. § 260.12(a)(2)) (emphasis added in Plaintiffs’ brief). On the other hand,

4

Plaintiffs note, “the Guides expressly state that the disclaimer ‘[c]heck to see if recycling facilities

5

exist in your area’ would be deceptive on a product that is marketed nationally if recycling

6

programs for the product were only ‘available to some consumers, but not available to a

7

substantial majority of consumers nationwide.’ ” Id. (quoting 16 C.F.R. § 260.12, example 4).

8

Similarly, Plaintiffs assert, the disclaimer here is misleading “because it improperly leads

9

consumers to believe that the Products are likely recyclable in their area when virtually no

10

United States District Court
Northern District of California

11

programs accept them for recycling.” Id. (emphasis in original).
Even if the Court “disagrees with the Green Guides[,]” Plaintiffs argue that it should not

12

rule on the question of whether the disclaimer is adequate at the 12(b)(6) stage of the case because

13

“whether a disclaimer adequately cures a misrepresentation is a factual question unsuitable for

14

determination on a motion to dismiss.” Id. (citing Mullins v. Premier Nutrition Corp., 178 F.

15

Supp. 3d 867, 892 (N.D. Cal. 2016)). Plaintiffs argue further that Colgate bears a heavy burden to

16

show that it will not resume its illegal conduct – which is also a factual question – and that the

17

statements in its brief regarding the likelihood that it will “resume its illegal conduct” are

18

insufficient to warrant ruling in Colgate’s favor on a motion to dismiss. Id. at 20 (citing

19

Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014); Fikre v. FBI, 904 F.3d 1033, 1037-41

20

(9th Cir. 2018)).

21

Plaintiffs also challenge Colgate’s argument that they do not have standing to seek

22

injunctive relief, citing Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017). Id. at

23

20-23. According to Plaintiffs, in Davidson the plaintiff sought injunctive relief based on similar

24

allegations, namely, that she wished to purchase defendants’ “flushable” wipes if they were truly

25

flushable. Id. (citing Davidson, 873 F.3d at 1116). In that case, Plaintiffs contend, the Ninth

26

Circuit found that “the fact that the plaintiff wanted to purchase the product again and that she

27

could not rely on the label’s truthfulness was a sufficient informational injury to confer Article III

28

standing.” Id.
20

Plaintiffs reject Colgate’s reliance on Sinatro v. Barilla America, Inc., 635 F. Supp. 3d 858

United States District Court
Northern District of California

1
2

(N.D. Cal. 2022), arguing that that case is distinguishable from Davidson and the facts here

3

because “Barilla pasta had a disclosure that it was made in ‘Made in the USA’ on the box.” Id.

4

(citing 635 F. Supp. 3d at 874-875). According to Plaintiffs, “[t]his fact matters because the

5

plaintiff would be able to check the product, at the point of sale, to determine whether it was still

6

‘Made in USA.’ That is not the circumstance here because there is nothing on the Products that

7

clarify whether the ‘Recyclable Tube’ claim is true or false.” Id. at 22.

8

Finally, Plaintiffs object to Colgate’s request for judicial notice of sixteen exhibits,

9

asserting that it is an “example of what the Ninth Circuit has recently termed a ‘concerning

10

pattern[ ]’ ” of “ ‘pile[ing] on numerous documents to [its] motion to dismiss’ ‘to undermine the

11

complaint, and hopefully dismiss the case at an early stage.’ ” Id. at 23 (quoting Khoja v.

12

Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018)).
3. Reply

13

In its Reply, Colgate reiterates its argument that Plaintiffs have failed to plausibly allege

14
15

that it has made misleading statements on the Product packaging, arguing that “this Court should

16

reject Plaintiffs’ attempt to collapse the distinction between their ‘deceptive’ and ‘unlawful’

17

claims by elevating an alleged violation of the Green Guides to “per se” deception of reasonable

18

consumers under California law.” Reply at 2. Colgate argues further that the Court should reject

19

Plaintiffs’ attempt to distinguish Swartz and Curtis. Id. at 3-4.
Colgate repeats its arguments that the disclosures on the Product websites should be

20
21

considered in determining whether the labels are misleading, and that those statements defeat

22

Plaintiffs’ claims that Colgate’s labelling of the products would mislead a reasonable consumer.

23

Id. at 6-8. It also reiterates its position that the statements on the labels satisfy the Green Guides

24

and argues that Smith is distinguishable. Id. at 9-10. Finally, it rejects Plaintiffs’ arguments

25

concerning mootness and standing to seek injunctive relief. Id. at 11-13.

26

III.

ANALYSIS

27

A.

28

A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure

Legal Standards

21

1

for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss

2

under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp.

3

Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage

4

is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which

5

sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing

6

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

United States District Court
Northern District of California

7

In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and

8

takes “all allegations of material fact as true and construe[s] them in the light most favorable to the

9

non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A

10

complaint must “contain either direct or inferential allegations respecting all the material elements

11

necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550

12

U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.

13

1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements

14

of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,

15

550 U.S. at 555). Rather, the claim must be “‘plausible on its face,’” meaning that the plaintiff

16

must plead sufficient factual allegations to “allow[] the court to draw the reasonable inference that

17

the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570).

18

Rule 9(b) imposes heightened pleading requirements for all claims that “sound in fraud” or

19

are “grounded in fraud.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (citation

20

omitted); Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity

21

the circumstances constituting fraud or mistake.”). “[The Ninth Circuit] has interpreted Rule 9(b)

22

to require that allegations of fraud are specific enough to give defendants notice of the particular

23

misconduct which is alleged to constitute the fraud charged so that they can defend against the

24

charge and not just deny that they have done anything wrong.” Neubronner v. Milken, 6 F.3d 666,

25

671 (9th Cir. 1993) (quotation marks and citation omitted). Thus, a fraud claim must state the

26

“who, what, when, where, and how” of the alleged conduct, Cooper v. Pickett, 137 F.3d 616, 627

27

(9th Cir. 1997), and “set forth an explanation as to why [a] statement or omission complained of

28

was false or misleading,” In re GlenFed, Inc. Secs. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en
22

United States District Court
Northern District of California

1

banc), superseded by statute on other grounds as stated in Ronconi v. Larkin, 253 F.3d 423, 429 &

2

n.6 (9th Cir. 2001). “Malice, intent, knowledge and other conditions of a person's mind may be

3

alleged generally.” Fed. R. Civ. P. 9(b).

4

B.

5

Generally, the Court may not consider material outside the pleadings in ruling on a motion

Request for Judicial Notice

6

to dismiss for failure to state a claim. Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994),

7

overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

8

There are two exceptions to this rule: the incorporation-by-reference doctrine and judicial notice

9

under Federal Rule of Evidence 201. Each mechanism permits district courts to consider materials

10

outside the complaint on a Rule 12(b)(6) motion but does so for different reasons. Khoja v.

11

Orezigen Therapeutics, Inc., 899 F.3d 988, 1002-03 (9th Cir. 2018).

12

Rule 201 permits a court to take judicial of an adjudicative fact if it is “not subject to

13

reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable dispute” if it is

14

“generally known,” or “can be accurately and readily determined from sources whose accuracy

15

cannot reasonably be questioned.” Id. Though a court may take judicial notice of matters of

16

public record and properly consider those matters when evaluating a motion to dismiss, a court

17

may not take judicial notice of disputed facts contained in such public records without converting

18

the motion into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689

19

(9th Cir. 2001).

20

“Unlike rule-established judicial notice, incorporation-by-reference is a judicially created

21

doctrine that treats certain documents as though they are part of the complaint itself.” Khoja, 899

22

F.3d at 1002. “The doctrine prevents plaintiffs from selecting only portions of documents that

23

support their claims, while omitting portions of those very documents that weaken—or doom—

24

their claims.” Id. A court may incorporate a document by reference if the complaint refers

25

extensively to the document or the document forms the basis for the plaintiff’s claim. Id.

26

(citations omitted). If a document “merely creates a defense” to the complaint’s allegations, the

27

document does not necessarily “form the basis of” the complaint. Id. at 1002-03 (“Although the

28

incorporation-by-reference doctrine is designed to prevent artful pleading by plaintiffs, the
23

1

doctrine is not a tool for defendants to short-circuit the resolution of a well-pleaded claim.”).

2

When a court incorporates a document by reference, it may assume all contents of the document

3

are true for the purposes of a motion to dismiss under 12(b)(6). Id. at 1003 (citing Marder v.

4

Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (quotations omitted)).

5
6

doctrines discussed above. Plaintiffs object to Colgate’s request as to all of Colgate’s exhibits.

7

The Court’s rulings are set forth below.

8
9

United States District Court
Northern District of California

Colgate asks the Court to take judicial notice of sixteen exhibits under one or both of the

Exhibit 1: This exhibit is a copy of an article entitled “Colgate’s 9 Billion Toothpaste
Tubes Defy Effort to Recycle Them,” which was published on December 9, 2022. According to

10

Colgate, because “Plaintiffs reference and discuss the article” in the FAC, “the article itself . . .

11

forms a basis for Plaintiffs’ claims and is properly subject to judicial notice.” RJN at 3 (citing

12

FAC ¶ 5 n. 2); Reply at 13 (citing FAC at 3 n.2–3; id. at 9 n.8–10; id. at 11 n.11–12). Plaintiffs

13

counter that their complaint does not “necessarily” rely on the Bloomberg Article, which they cite

14

only to “corroborates their allegations that there are no established recycling programs for the

15

Products in California.” Opposition at 23. If the Court incorporates the article by reference,

16

Plaintiffs contend “it should not interpret the documents to contradict well pled factual allegations

17

in the complaint.” Id. (citing Sgro v. Danone Waters of N. Am. Inc., 532 F.3d 940, 943 n.1 (9th

18

Cir. 2008)).

19

The Court finds that the incorporation by reference doctrine applies to this document.

20

While Plaintiffs’ claims are not based on statements made in the Bloomberg Article, Plaintiffs cite

21

to the Bloomberg Article numerous times in the FAC. They also concede that they rely on the

22

Bloomberg Article to support their allegation that there are no established recycling programs for

23

the Products in California, which is core fact supporting the theory of their claims. Moreover, in

24

the FAC Plaintiffs characterize the article generally as “questioning the accuracy of Defendant’s

25

claims.” FAC ¶ 5. Colgate’s request is GRANTED as to Exhibit 1.

26

Exhibits 2, 3, 5, 6, 10 and 11: These exhibits contain screenshots of pages on the Tom’s

27

and Colgate websites (“Product websites”). Colgate argues that because the FAC references the

28

Product websites and includes images of Tom’s and Colgate packaging with the Product websites
24

1

printed on it, the images and screenshots “form a basis for Plaintiffs’ claims and are properly

2

subject to judicial notice.” RJN at 3 (citing FAC ¶¶ 21, 27, 30 n.7); id. at 4 (citing Gregorio v.

3

Clorox Co., No. 17-3824, 2018 WL 732673, at *1 n.2 (N.D. Cal. Feb. 6, 2018); Stewart v. Kodiak

4

Cakes, LLC, 537 F. Supp. 3d 1103, 1121–22 (S.D. Cal. 2021)). It argues that the website

5

screenshots are subject to judicial notice for the additional reason that “they are publications, and

6

courts regularly grant judicial notice of publicly available pages from websites ‘to indicate what

7

was in the public realm.’ ” Id. at 4 (quoting Makeaff v. Trump Univ., 715 F.3d 254, 259 n.2 (9th

8

Cir. 2013)).

United States District Court
Northern District of California

9

Plaintiffs object to Colgate’s request, arguing that the “various FAQs from the colgate.com

10

and tomsofmaine.com websites . . . . are not incorporated-by-reference by the FAC.” Opposition

11

at 3-4. In particular, while Plaintiffs concede that “the Products state that consumers can ‘learn

12

more . . at colgate.com/goodness [or tomsofmaine.com],’” id., they argue that “the specific pages

13

that Colgate seeks to introduce are not referenced in the FAC at all. See, e.g., Ex. 2

14

(https://www.colgate.com/en-us/our-mission/sustainability/faq#), Ex. 3

15

(www.tomsofmaine.com/our-promise/caring-for-the-planet/recyclable-tube), Ex. 5

16

www.colgate.com/enus/power-of-optimism/faq), Ex. 6 (same), Ex. 10

17

(www.tomsofmaine.com/our-promise/caring-for-theplanet/ recyclable-tube), Ex. 11 (same).” Id.

18

According to Plaintiffs, “[n]one of these links are printed on the Products, referenced in the FAC,

19

nor were seen by the Plaintiffs” and it is “improper” to treat the entire Product websites as

20

incorporated by reference into the FAC “because the Colgate and Tom’s of Maine websites are

21

massive and consists of hundreds (if not thousands) of individual pages.” Id.

22

The Court GRANTS Colgate’s request as to these exhibits. As a preliminary matter, the

23

Court is not persuaded that Makeaff v. Trump Univ., 715 F.3d 254 (9th Cir. 2013) supports

24

Colgate’s request. In that case, the plaintiff sued Trump University for deceptive business

25

practices, among other things, and Trump University brought a counterclaim for defamation

26

against Makeoff. 715 F.3d at 260. Makeoff then brought an anti-SLAPP motion seeking dismissal

27

of the defamation claim on the basis that it was aimed at protected activity, which the district court

28

denied. Id. The district court found that although Makeoff was engaging in protected activity
25

1

when she spoke out about Trump University, Trump University was likely to prevail on its claim

2

because it was not a public figure and therefore, the heightened burden of proof for public figures

3

did not apply to its defamation claim. Id. at 261.

United States District Court
Northern District of California

4

The Court of Appeals in Trump v. Makeoff concluded that the district court had erred in

5

finding Trump University was not a public figure, pointing to evidence that it engaged in

6

extensive advertising to support the court’s conclusion that Trump University was a limited public

7

figure. Id. at 267-270. In that context, the Court of Appeals “[took] notice of book collaborations

8

between Donald Trump and Trump University, newspaper and magazine articles, and web

9

pages[,]” citing Fed.R.Evid. 201 and Von Saher v. Norton Simon Museum of Art at Pasadena, 592

10

F.3d 954, 960 (9th Cir.2010) for the proposition that “it is proper to take judicial notice of various

11

publications introduced ‘to indicate what was in the public realm at the time, not whether the

12

contents of those articles were in fact true[.]’” Id. at 259 n. 2. Notably, the Court’s consideration

13

of the anti-SLAPP motion was not limited to the allegations in the complaint. Id. at 261 (setting

14

forth legal standards governing anti-SLAPP motions).

15

The facts and issues here are not remotely like the ones in Trump v. Makeoff and Colgate

16

does not rely on its Product webpages to “indicate what was in the public realm.” Instead, it seeks

17

to introduce print-outs from its webpages to establish that claims it makes on Product packaging

18

are not misleading because of other statements (which happen to be in the public realm) on its

19

websites. Colgate’s reliance on this case is misplaced.

20
21
22
23
24
25
26
27
28

Colgate’s second argument, based on the incorporation by reference doctrine, presents a
closer call. The FAC includes the following references to the Product websites:
Paragraph 21: “At most, newer versions of the Products invite
consumers to visit a website by stating: ‘Learn more about our
recyclable tube at: colgate.com/goodness.’ But nothing about this
disclosure limits the unqualified recyclability claim.”
Paragraph 27: Defendant’s packaging and advertising also invites
consumers to “[l]earn more at tomsofmaine.com.” However,
Defendant’s (tomsofmaine) website only includes a short video
regarding the purported recyclability of the Products. If a person goes
to the very bottom of the Tom’s of Maine website, there is an FAQ.
The FAQ states “[g]etting your tube ready for recycling is easy:
simply squeeze out as much of the toothpaste from the tube as you
can, replace the cap, and place the tube in your recycling bin.”
26

4

Paragraph 30: “Defendant reinforces its ‘Recyclable Tube’
misrepresentations with additional claims on the Products and on its
websites6 such as ‘Recycle Me!,’ ‘Buy Smart – By reaching for this
toothpaste tube you’re actively making a difference;’ ‘Recycle It –
Our recyclable tube is not meant for a landfill—it gets turned into
useful products;’ and ‘As the leaders in the oral care industry, we
wanted to create a recyclable alternative.’7”

5

Footnote 6 to Paragraph 30 states, “To be clear, Plaintiffs do not base their claims on Defendant’s

6

website representations, but only cite them to show the extent of Defendant’s misrepresentations.”

7

Paragraph 7 provides the following citation: Introducing the first-of-its-kind recyclable toothpaste

8

tube, Colgate http://www.colgate.com/en-gb/power-of-optimism/faq (last visited July 26, 2023).

1
2
3

United States District Court
Northern District of California

9

There is no doubt that when a plaintiff asserts claims that directly challenge statements on

10

a defendant’s website as misleading, the website (or at least, the webpage) where the statement

11

appeared is subject to judicial notice so long as there is no dispute about its authenticity. See, e.g.,

12

Stewart v. Kodiak Cakes, LLC, 537 F. Supp. 3d 1103, 1121-1122 (S.D. Cal. 2021) (concluding

13

that where the plaintiffs’ complaint referred “extensively to Defendant’s online advertising, and

14

online advertising form[ed] a basis of their claims[,]” it was not improper for the court to consider,

15

on a motion to dismiss, exhibits containing copies of webpages showing images of product labels

16

under the doctrine of incorporation by reference). Here, however, Plaintiffs emphasize in the FAC

17

that the claims by Colgate that are misleading – and that are the basis of Plaintiffs’ claims in the

18

FAC – are only the claims made on the Product packaging.

19

Despite Plaintiffs’ attempt to limit their reliance on the Product websites, the Court

20

concludes that by alleging generally that statements on the Product websites “reinforce[ ]”

21

Colgate’s misrepresentations, FAC ¶ 30, Plaintiffs sufficiently rely on the Product websites to

22

justify applying the doctrine of incorporation by reference to the websites as a whole, even if the

23

specific webpages offered by Colgate are not expressly referenced in the FAC. Furthermore, as to

24

the Tom’s website, at least, the allegations in paragraph 27 are not limited to any particular

25

webpage, alleging that the disclosures on the website as a whole fall short.

26

The Court also notes that Gregorio v. Clorox Co., No. 17-CV-03824-PJH, 2018 WL

27

732673, at *1 (N.D. Cal. Feb. 6, 2018) appears to be on point. In that case, the plaintiffs alleged

28

that twelve of Clorox’s Green Works products contained misleading statements on their labels,
27

United States District Court
Northern District of California

1

including claims that the products were “naturally derived.” 2018 WL 732673, at *1. The

2

plaintiffs further alleged that the labels referred consumers to two websites and that statements on

3

the websites disclosed that the products were “not entirely naturally derived.” Id. The court took

4

judicial notice of “copies of the two websites listed on the back of the green works label” based on

5

the fact that the websites were “listed on the back of the green works label.” Id. at n. 2. Given

6

that Plaintiffs here do not appear to dispute the authenticity of the webpages offered by Colgate as

7

exhibits, the Court concludes that judicial notice of the Product webpages is also appropriate here.

8

Exhibits 4, 7, 8, 9, 12, 13: These exhibits contain images of Tom’s and Colgate toothpaste

9

packaging, both at the time of Plaintiffs’ alleged purchases (Exhibits 4, 8, and 9) and currently

10

(Exhibits 7, 12 and 13). Colgate argues that these images are incorporated by reference in the

11

FAC because the FAC contains images of Tom’s and Colgate packaging and Plaintiffs allege they

12

were misled by claims on the packaging of the Products. Therefore, Colgate contends, Plaintiffs’

13

claims are based on these labels and may properly be considered on a motion to dismiss. RJN at

14

3-4. Plaintiffs object to Colgate’s request as to all of these exhibits because “these proofs do not

15

accurately display how the products would appear to consumers in stores.” Opposition at 24

16

(citing Brown v. Hain Celestial Group, Inc., 913 F. Supp. 2d 881, 893 (N.D. Cal. 2012);

17

Stewart, 537 F. Supp.3d at 1120; Tsan v. Seventh Generation, Inc., No. 15-CV-00205-JST, 2015

18

WL 6694104, at *3 (N.D. Cal. Nov. 3, 2015)). In addition, as to Exhibits 7, 12 and 13, Plaintiffs

19

object that these images are irrelevant because these package labels were used for newer products

20

that Plaintiffs do not allege they purchased. Id.

21

The Court does not find Plaintiffs’ argument regarding Colgate’s use of proofs persuasive.

22

Courts may decline to take judicial notice of product label proofs where the authenticity of the

23

proof is disputed or the proof may distort the way consumers view the product label. For example,

24

in Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881 (N.D. Cal. 2012), the court declined to

25

take judicial notice of product label proofs for two reasons. First, “[the] [p]laintiffs made an

26

authenticity objection and that generally is dispositive.” 913 F. Supp. 2d at 893. Second, the

27

court noted that “these are proofs, not photographs of the labels or the products themselves” and

28

the plaintiffs “ma[d]e factual arguments about what the proofs [did] and [did] not show.” Id.
28

1

Under these circumstances, the court found, “that is enough at the motion to dismiss stage so that

2

the court should not take notice of them.” Id. The court recognized, however, that courts

3

sometimes take judicial notice of labels where “no party objected to those requests for judicial

4

notice.” Id. (citing Dvora v. General Mills, Inc., No. CV 11–1074–GW(PLAx), 2011 WL

5

1897349, at *2 (C.D.Cal. May 16, 2011); Von Koenig v. Snapple Beverage Corp., 713 F.Supp.2d

6

1066, 1072–73 (E.D.Cal.2010); McKinniss v. Sunny Delight Beverages Co., No. CV 07–02034–

7

RGK, 2007 WL 4766525, at *4 n. 1 (C.D. Cal. Sept. 4, 2007)).

8

United States District Court
Northern District of California

9

Here, Plaintiffs do not dispute the authenticity of any of the labels offered by Colgate.
Moreover, while they object that proofs may distort what the consumer actually sees when they

10

buy the Products, they do not point to any specific aspect of the proofs that they contend is

11

distorted. To the extent that it is the two-dimensional representation of the four sides of the box,

12

Plaintiffs’ position is undermined by the two-dimensional images of the Product packaging in the

13

FAC, which show both the front and the back of the package. See, e.g., FAC ¶¶ 19-20, 24. Nor

14

do Plaintiffs make any other factual arguments about what the proofs “do and do not show” that

15

would make it improper to take judicial notice of these images on a motion to dismiss. Therefore,

16

the Court is not persuaded that it should deny Colgate’s request on this basis. Furthermore, as to

17

Exhibits 4, 8 and 9, Plaintiffs do not dispute that these images show the packaging that was used

18

on the Products that Plaintiffs allege they purchased. Therefore, the Court finds that Plaintiffs’

19

claims are based on these labels, which the Court finds to be incorporated by reference.

20

As to Exhibits 7, 12 and 13, on the other hand, these images show Product labels that were

21

adopted after Plaintiffs purchased the Products that are the basis for their claims. Although it is

22

true that the FAC includes allegations about the claims on “newer products[,]” FAC ¶ 21, and

23

these allegations are relevant to whether Plaintiffs will be able to obtain injunctive relief, the Court

24

finds that Plaintiffs’ claims are not based on these specific Product labels and therefore declines to

25

take judicial notice of these exhibits.

26
27
28

In sum, the Court GRANTS Colgate’s request as to Exhibits 4, 8 and 9 and DENIES its
request as to Exhibits 7, 12 and 13.
Exhibits 14-16: Exhibits 15 and 16 are screenshots taken from the CalRecycle website,
29

United States District Court
Northern District of California

1

accessible at https://calrecycle.ca.gov/ and the website, https://www.epa.gov/recycle/frequent-

2

questions-recycling, respectively. Colgate argues that the Court should take judicial notice of

3

these screenshots – and consider them in ruling on its motion to dismiss – because courts may take

4

judicial notice of “undisputed and publicly available information displayed on government

5

websites.” Id. at 5 (quoting King v. Cnty. of Los Angeles, 885 F.3d 548, 555 (9th Cir. 2018); and

6

citing Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018); Sears v. County of

7

Monterey, No. 11-1876, 2013 WL 4510672, at *4 (N.D. Cal. Aug. 22, 2013)). Colgate argues

8

further that the Court should take judicial notice of Exhibit 14, which is a screenshot from the “I

9

Want To Be Recycled” website, berecycled.org. According to Colgate, the Environmental

10

Protection Agency’s website directs visitors to the “I Want To Be Recycled” website for “more

11

information” about local recycling and thus, this screenshot, like the screenshots in Exhibits 15

12

and 16, is subject to judicial notice as information “publicly available” on a government website.

13

Id. at 5.

14

It is well-established that under Rule 201 of the Federal Rules of Evidence, courts may

15

take judicial notice of public records that are downloaded from an agency’s official website. See,

16

e.g., Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 812 F. Supp. 2d 1089, 1093

17

(E.D. Cal. 2011). Such records “may be considered only for limited purposes[,]” however. Id. In

18

particular, “[p]ublic records ‘are subject to judicial notice under [Rule] 201 to prove their

19

existence and content, but not for the truth of the matters asserted therein. This means that factual

20

information asserted in these document[s] or the meeting cannot be used to create or resolve

21

disputed issues of material fact.’ ” Id. (quoting Coalition for a Sustainable Delta v. McCamman,

22

725 F.Supp.2d 1162, 1183–84 (E.D. Cal.2010) (emphasis in original)). On this basis, the Court

23

GRANTS Colgate’s request as to Exhibits 15 and 16 and takes judicial notice of these documents

24

for the limited purpose discussed above. On the other hand, the Court DENIES the request as to

25

Exhibit 14 because Colgate has not pointed to any authority that extends this rule to websites

26

operated by private entities simply by virtue of the fact that they are linked to a governmental

27

website.

28
30

C.

1
2

1. Legal Standards Governing the Reasonable Consumer Test
The parties agree that all of Plaintiffs’ claims – with the possible exception of the UCL

3

United States District Court
Northern District of California

Whether Plaintiffs’ Have Plausibly Alleged That Colgate’s Labeling Contains
Any Representations or Omissions That Would Mislead Reasonable Consumers

4

unlawful claim4 – are governed by the “reasonable consumer” test. Under this standard, Plaintiffs

5

“must show that ‘members of the public are likely to be deceived. ” Ebner v. Fresh, Inc., 838 F.3d

6

958, 965 (9th Cir. 2016) (internal quotations and citations omitted). “[T]the reasonable consumer

7

standard requires a probability ‘that a significant portion of the general consuming public or of

8

targeted consumers, acting reasonably in the circumstances, could be misled.’ ” Id. (quoting Lavie

9

v. Procter & Gamble Co., 105 Cal.App.4th 496, 508).

10

“ ‘[W]hether a business practice is deceptive will usually be a question of fact not

11

appropriate for decision on demurrer’ under California law.” Mattero v. Costco Wholesale Corp.,

12

336 F. Supp. 3d 1109, 1117 (N.D. Cal. 2018) (quoting Williams v. Gerber Products Co., 552 F.3d

13

934, 938 (9th Cir. 2008)). “[O]nly in a ‘rare situation’ can a court grant a motion to dismiss when

14

a plaintiff claims that an advertisement is deceptive.” Hernandez v. Radio Sys. Corp., No.

15

EDCV221861JGBKKX, 2023 WL 4291829, at *8 (C.D. Cal. May 10, 2023) (citing Williams,

16

552 F.3d at 939; Moore v. Mars Petcare US, Inc., 966 F.3d at 1017). However, “where plaintiff's

17

challenge to a statement on a label is easily dispelled because of other, similarly prominent or

18

proximate statements[,]” it may be appropriate to decide this question on the pleadings. Mattero

19

v. Costco Wholesale Corp., 336 F. Supp. 3d 1109, 1117 (N.D. Cal. 2018) (citing Kane v. Chobani,

20

Inc., 12-CV-02425-LHK, 2013 WL 5289253, at *10 (N.D. Cal. Sept. 19, 2013) (“it is not

21

plausible that Plaintiffs believed, based on Defendant's ‘[o]nly natural ingredients’ or ‘all natural’

22

representations, that the Yogurts did not contain added fruit juice.”); Jonathan Chuang v. Dr.

23

Pepper Snapple Group, Inc., CV1701875MWFMRWX, 2017 WL 4286577, at *4 (C.D. Cal. Sept.

24

20, 2017) (“Plaintiff does not adequately allege how the images and statements are false, in

25
26
27
28

As to the UCL unlawful claim, which is based on Colgate’s alleged failure to adhere to the
requirements of the Green Guides, there is a disagreement because Plaintiffs contend labelling that
does not adhere to the Green Guides is also misleading under the reasonable consumer test as a
matter of law whereas Colgate contends a label that does not adhere to the Green Guides is not
necessarily misleading under the reasonable consumer standard.
31
4

United States District Court
Northern District of California

1

particular because an independent review of the product labels reveals that the statements are not

2

false, as the products do contain the fruits and vegetables depicted, are made with fruit and

3

vegetable juice, and contain 100% of the daily value of Vitamin C.”). Likewise, courts may decide

4

this question on the pleadings where they “have found that a modicum of common sense would

5

reveal the truth behind advertising.” Smith v. Keurig Green Mountain, Inc., 393 F. Supp. 3d 837,

6

847 (N.D. Cal. 2019).

7

2. Whether “Intrinsic” Recyclability Renders Claims Non-Misleading

8

Here, the theory of Plaintiffs’ claims is relatively straightforward: they allege that they

9

saw the “recyclable tube” claim on the Product label and purchased the Product because they

10

believed it was recyclable but in fact, the Product was not recyclable as “there is not a single

11

program that accepts toothpaste tubes of any kind” in California or in the United States” “because

12

of the processing concerns that they pose.” FAC ¶¶ 4, 43, 57-59. Colgate, on the other hand,

13

contends its “recyclable” claims are accurate and not misleading because the Products are made

14

out of a type of plastic that is widely accepted by recycling facilities and therefore, that they are

15

intrinsically capable of being recycled, which is also what a reasonable consumer would expect.5

16

The Court finds Colgate’s argument that Plaintiffs’ claims must be dismissed on this ground

17

unpersuasive.

18

The allegations in this case are similar to the allegations in Smith v. Keurig Green

19

Mountain, Inc., 393 F. Supp. 3d 837 (N.D. Cal. 2019), which the court found were sufficient to

20

plausibly allege that a reasonable consumer would be misled by the defendant’s claims of

21
22
23
24
25
26
27
28

In a footnote in its Motion, Colgate also asserts that “the Tom’s Rapid Relief carton did not
contain any” “recyclability” representation when Lienhard purchased that Product and therefore,
Plaintiff Lienhard’s claims fail to the extent she alleges that she was misled by claims on that
Product. Motion at 18 n. 12; see also FAC ¶ 59 (“On several occasions over the past four years,
including on or around August 2022, Plaintiff Lienhard purchased Tom’s of Maine Fluoride-Free
Rapid Relief Sensitive Toothpaste and Tom’s of Maine Fluoride-Free Antiplaque and Whitening
Toothpaste at a Walmart near her home in Arroyo Grande, California. She read the claim ‘The
First of Its Kind Recyclable Tube’ on the Product and purchased it because she believed that it
was recyclable, which she understood to mean that recycling facilities that accept and recycle the
Product are generally available to consumers in California.”). However, the image of the Tom’s
Rapid Relief carton that was used at the time of Lienhard’s alleged purchase, offered by Colgate
as Spelman Decl., Ex. 9, shows that the packaging of that Product did, in fact, refer to “the first of
its kind recyclable tube[,]” albeit in small print. See Spelman Decl., Ex. 9. Therefore, the Court
rejects this argument.
32
5

United States District Court
Northern District of California

1

recyclability. In Smith, the defendant sold single-serve plastic coffee pods (“Pods”) that it labeled

2

as “recyclable.” 393 F. Supp. 3d at 842. FAC ¶¶ 1–2. The plaintiffs alleged these claims were

3

misleading because although the Pods were made from Polypropylene (#5) plastic, which was “a

4

material currently accepted for recycling in approximately 61% of U.S. communities[,]” domestic

5

municipal recycling facilities (“MRF”) did not accept the Pods due to their size (the recycling

6

facilities were “not equipped to capture materials as small as the Pods and separate them from the

7

general waste stream[ ]”) and the contamination risk the Pods posed. Id. Although the defendant

8

included disclaimer language on the labels that the Pods were “‘[n]ot recyclable in all

9

communities’ and the directive for consumers to ‘check locally’ to determine recyclability at their

10

local MRF[,]” the court found that the plaintiff had adequately alleged that a reasonable consumer

11

would be misled, highlighting the plaintiffs’ allegation that the Pods “were not recyclable at all.”

12

Id. at 846-847. The court found that neither the disclaimers nor common sense would “clearly

13

lead a person to believe that a package labeled ‘recyclable’ is not recyclable anywhere” and

14

therefore concluded the plaintiff’s claims were plausibly alleged. Id. at 847. Drawing all

15

reasonable inferences in Plaintiffs’ favor, the same is true here.

16

Colgate relies on Swartz v. Coca-Cola Co., No. 21-4643, 2022 WL 17881771 (N.D. Cal.

17

Nov. 18, 2022) to argue that a reasonable consumer would not be misled by its claims of

18

recyclability because technically, it is true that the Products are capable of being recycled. The

19

Court finds, however, that Colgate reads that case too broadly. In Swartz, the plaintiffs asserted

20

that the claim “100% recyclable” on the defendant’s single-use plastic bottles was misleading

21

because some “bottles end[ed] up in landfills or incinerators due to a lack of recycling capacity

22

and a lack of demand for recycled plastic.” No. 21-CV-04643-JD, 2022 WL 17881771, at *1

23

(N.D. Cal. Nov. 18, 2022). The court found that these allegations failed to state a claim because

24

“[n]o reasonable consumer would understand ‘100% recyclable’ to mean that the entire product

25

will always be recycled or that the product is ‘part of a circular plastics economy in which all

26

bottles are recycled into new bottles to be used again.’” Id. (quoting plaintiffs’ complaint). The

27

court continued,
In everyday usage, “recyclable” is an adjective that means capable of
being recycled (e.g., “the plate is made of recyclable paper”), or a

28

33

noun that denominates an object that can be recycled (e.g., “the
students raised funds by selling recyclables to disposal facilities”). It
does not mean a promise that an object will actually be recycled, as
plaintiffs would have it. The allegation that defendants advertised
recyclable bottles as part of a “circular plastics economy” does not
plausibly establish that a reasonable consumer would interpret
“recyclable” in the exaggerated manner that plaintiffs suggest. See id.
¶ 58; see also Becerra v. Dr Pepper / Seven Up, Inc., 945 F.3d 1225,
1230 (9th Cir. 2019) (the word “diet” is not an “implicit weight-loss
promise”). If anything, a reasonable consumer would understand that
making an object recyclable is just the first step in the process of
converting waste into reusable material, and not a guarantee that the
process will be completed.

1
2
3
4
5
6
7
8

United States District Court
Northern District of California

9

Id. at *1.
Colgate relies heavily on the statement in Swartz that “recyclable” “does not mean a

10

promise that an object will actually be recycled.” But the discussion that follows that statement

11

makes clear that that reasoning in Swartz does not apply to the facts here. In particular, the court

12

supported its conclusion by looking to the Green Guides provision governing when an unqualified

13

claim of recyclability may be made, namely, “if recycling facilities are available to at least 60%

14

‘of consumers or communities where the item is sold.’ ” Id. at *2 (quoting 16 C.F.R. §

15

260.12(b)(1)). The court found based on the allegations in the complaint that that standard seemed

16

to be met, citing allegations that “acknowledge[d] that defendants’ bottles ‘may be accepted for

17

recycling by some curbside programs,’ and that consumers and communities in California have

18

access to at least 75 Materials Recovery Facilities (MRFs) that process the plastics that comprise

19

the bottles.” Id. Furthermore, the court reasoned, while the complaint “cite[d] to reports about a

20

nationwide lack of recycling infrastructure, capacity, and demand, . . . it allege[d] no facts about

21

the processing capabilities of MRFs in California and never allege[d] that any MRFs reject

22

defendants’ products.” Id. (emphasis added). In contrast, that is just what is alleged here. Unlike

23

the plaintiffs in Swartz, Plaintiffs do not assert that Colgate’s claims are misleading because

24

consumers would understand them to “guarantee” that the Products will actually be recycled.

25

Rather, they assert that they are misleading because a reasonable consumer would not expect that

26

the Product is not accepted for recycling by any existing recycling program.

27
28

In a footnote, Colgate attempts to get around this language in Swartz by arguing that
Plaintiffs’ complaint “contains no plausible allegations that MRFs lack the capability to process
34

1

recyclable toothpaste tubes, which are compatible with the HDPE #2 plastic recycling stream;

2

rather, the Complaint alleges that MRFs are reluctant to accept such tubes because of the presence

3

of non-recyclable tubes in the market.” Motion at 13 n. 8. They further distinguish “other cases

4

where the products were allegedly rejected by recycling facilities due to the products’ size, shape,

5

or other intrinsic characteristic (see, e.g., Smith v. Keurig Green Mountain, Inc., 393 F. Supp. 3d

6

837 (N.D. Cal. 2019))” on the basis that “here, MRFs’ alleged rejection of the Products [is]

7

based on external market circumstances” and therefore “does not render the ‘recyclable’ claim

8

false or misleading.” The Court rejects this tortured reasoning.

United States District Court
Northern District of California

9

First, Colgate mischaracterizes the allegations in the FAC when it makes the conclusory

10

statement that Plaintiffs merely allege that recycling facilities are “reluctant” to accept their tubes

11

for recycling and does not plausibly allege that facilities actually reject them for recycling. In fact,

12

Plaintiffs’ FAC alleges repeatedly that virtually no recycling facilities in California or the United

13

States accept their product for recycling. See, e.g., FAC ¶¶ 4 (“virtually all of the municipal

14

recycling programs and materials recovery facilities . . . in California and the United States reject

15

the Products”), 6 (“Defendant knows that the Products almost invariably end up in landfills or

16

incinerated because recycling facilities do not accept them.”), 34 (“Although the Product was

17

designed to be theoretically recyclable, in practice, recycling facilities do not accept the

18

redesigned tubes.”), 43 (www.earth911.com, the largest and most comprehensive database of

19

recycling centers in the country, shows that there is not a single program that accepts toothpaste

20

tubes of any kind.)

21

Second, the Court finds unpersuasive Colgate’s assertion that its claims are not misleading

22

– even if recycling facilities uniformly reject their Product for recycling – because the Products are

23

rejected as a result of “external market circumstances” rather than anything intrinsic to the

24

product. Colgate does not explain why a reasonable consumer would not be equally likely to be

25

misled by its claims of recyclability, regardless of the reason for rejecting the Products, where the

26

Products are (allegedly) uniformly rejected by recycling facilities in California and the United

27

States. Moreover, its assertion that the allegations in the FAC do not point to anything intrinsic to

28

the Products that causes them to be rejected by recycling facilities is incorrect. Plaintiffs point to
35

1

two specific features of the Products that cause recycling programs to reject them: 1) their shape;

2

and 2) the fact that “their Products cannot be fully emptied, and the leftover toothpaste

3

contaminates the recyclable waste stream, which makes the Products unrecyclable and jeopardizes

4

the recyclability of truly recyclable materials.” FAC ¶ 4.

5

As to the shape of its Products, Colgate’s assertion that it is not the shape of its own

6

recyclable toothpaste tubes but only the shape of the non-recyclable tubes that causes the Products

7

to be rejected makes no sense. Clearly, it is the shape of both types of tube, which is the same,

8

that allegedly results in the Products being rejected by recycling facilities. Thus, Colgate’s

9

assertion that “external market circumstances” are the reason its Products are allegedly rejected by

10

United States District Court
Northern District of California

11

recycling facilities is not persuasive.
The Court also rejects Colgate’s assertion that it need not accept Plaintiffs’ allegations

12

related to the contamination risk because the only specific fact they allege linking that risk to

13

rejection of Colgate’s Products by recycling facilities is the statement in the Bloomberg Article by

14

Peter Keller, Vice President of Sustainability at Republic Services, Inc., identifying “leftover

15

toothpaste” as a “concern[.]” Motion at 10 (citing FAC ¶ 40). Plaintiffs have expressly alleged

16

that “[t]here is an insurmountable contamination risk caused by leftover toothpaste. Even when

17

consumers know it is required, it is impossible for them to remove all of the toothpaste from the

18

tubes before recycling them. Thus, even if a recycling facility accepts irregularly shaped HDPE

19

plastic, the tubes are still not accepted because they are not clean and free of contaminants.” FAC

20

¶ 39. This is all Rule 8 requires. Furthermore, the fact that the Bloomberg Article “does not

21

indicate . . . that toothpaste tubes are not accepted for recycling based on the potential presence of

22

residue in the tubes,” Motion at 10, is not sufficient to render implausible Plaintiffs’ allegations

23

throughout the complaint on this issue. Rather, this question is more appropriately addressed at a

24

later stage of the case, when the factual record has been developed.

25

The Court also finds Colgate’s reliance on Curtis v. 7-Eleven, Inc., No. 21-CV-6079, 2022

26

WL 4182384, at *1 (N.D. Ill. Sept. 13, 2022) to be unpersuasive. In that case, the plaintiff

27

purchased from a 7-Eleven store foam plates, foam cups, party cups, and freezer bags that were

28

described as “recyclable” on the packaging. 2022 WL 4182384, at *1. She alleged that she
36

United States District Court
Northern District of California

1

purchased the products based on these claims and later placed them in her recycling bin believing

2

they would be recycled but that in reality, “the products aren’t recycled that often because few

3

recycling facilities take that type of plastic” and furthermore, “some of the products lacked

4

markings – recycling designations known as RIC labels – and thus did not give recycling facilities

5

the necessary information to sort the products.” Id. The plaintiff asserted a claim under the

6

Illinois Consumer Fraud Act (“ICFA”) but the court found that the claim failed to the extent it was

7

based on the limited number of recycling facilities, concluding that a reasonable consumer would

8

understand that the claim “recyclable” is “not a guarantee that there are local facilities that recycle

9

that type of plastic” and “does not mean ‘Will Be Recycled at a Facility Near YOU!’” Id. at * 14.

10

In reaching this conclusion, the court in Curtis relied on dictionary definitions of the suffix

11

“-able” and “common usage.” Id. at *13 (“ ‘Drinkable’ means you can drink it. ‘Edible’ means

12

you can eat it. ‘Drivable’ means you can drive it. ‘Fixable’ means you can fix it. ‘Movable’ means

13

you can move it. ‘Washable’ means you can wash it. ‘Readable’ means you can read it.

14

‘Reversible’ means, if you must, you can reverse it. ‘Recyclable’ means you can recycle it.”). The

15

Court rejected the plaintiff’s reliance on the Green Guides requirements governing when claims

16

related to recyclability are deceptive, observing that “[y]our average consumer at 7-Eleven

17

probably doesn’t have the FTC’s policy statements at his or her fingertips when picking up a bag

18

of foam plates for the backyard BBQ” and further opining that “[p]eople buying red party cups at

19

7-Eleven are more likely to be thinking about beer pong than the FTC’s consumer guidelines.” Id.

20

at *16.

21

Nonetheless, the court in Curtis did not reject the plaintiff’s claim in its entirety, finding

22

that as to the products that were labeled as “recyclable” but did not contain RIC numbers – the

23

foam plates and the freezer bags -- a reasonable consumer would be deceived because “without the

24

markings, the products can’t be recycled.” Id. at *17. In particular, despite the fact that these

25

products were made of a type of plastic that was capable of being recycled, the lack of markings

26

made it impossible for the plates and cups to be “separated” for recycling during the sorting

27

process. Id. The court found that to the extent the plaintiff’s claim was based on this theory, it

28

survived because the theory was “about the inherent qualities of the product itself.” Id.
37

United States District Court
Northern District of California

1

Here, Plaintiffs contend Curtis should not be followed because the court in that case chose

2

to disregard the Green Guides as not being probative of whether a reasonable consumer would be

3

misled, arguing that following that approach is inconsistent with California law. The Court need

4

not decide that question, however, because it finds that the facts in Curtis are distinguishable from

5

the facts here. First, the plaintiff in that case did not allege that no recycling facility accepted the

6

products at issue for recycling. Rather, the court found that “RIC No. 5 plastic can, in fact, be

7

recycled. It's recyclable! It just doesn’t happen very often, or in very many places.” Id. at *14.

8

Second, to the extent that the reasoning in Curtis could be construed as a holding that a

9

“recyclable” claim is not misleading so long as the product is made of a type of plastic that is

10

generally accepted for recycling even when that product is never recycled, the court’s holding as

11

to the products that do not contain RIC markings clearly precludes that broad interpretation. As to

12

those products, the court found that the intrinsic characteristics of the product that made it

13

impossible for recycling facilities to separate them from non-recyclables was sufficient to support

14

the conclusion that the products could not be recycled (and claims that they were “recyclable”

15

were therefore misleading), even though theoretically it would be possible to recycle them given

16

the type of plastic they were made from. As discussed above, Plaintiffs’ theory here is based on

17

intrinsic characteristics of the Products that prevent it from being recycled. Indeed, the allegations

18

here that recycling facilities are unable to distinguish the “recyclable” tubes from the non-

19

recyclable tubes and therefore cannot separate them for recycling is similar to the allegations in

20

Curtis that the court found were sufficient to state a claim as to the unmarked products. Therefore,

21

Colgate’s reliance on that case is misplaced.

22
23

3. Whether Disclaimers Render Colgate’s Claims Non-Misleading
Colgate contends its “recyclable” claims on the Products are not misleading because of

24

statements on the Product packaging that consumers can “learn more” about the recyclable tube on

25

the Product website. According to Colgate, it is transparent about the Product’s recyclability on

26

the Tom’s and Colgate websites and makes clear to consumers that some recycling facilities do

27

not accept Colgate’s “recyclable tube.” The Court rejects this argument.

28

As noted above, it is appropriate to grant a motion to dismiss on a deceptive advertising
38

1

claim only in rare situations where the plaintiff’s challenge to a statement is “easily dispelled

2

because of other, similarly prominent or proximate statements[,]” Mattero, 336 F. Supp. 3d at

3

1117, or on the basis of common sense. Smith v, 393 F. Supp. 3d at 847. Instead, Colgate relies on

4

statements on its websites to show that a reasonable consumer would not be misled by the

5

recyclability claims on the Product packaging without pointing to any allegations that suggest that

6

a reasonable consumer would be familiar with those statements at the time of purchase.

United States District Court
Northern District of California

7

Furthermore, courts are generally reluctant to charge a reasonable consumer with the

8

obligation of reviewing product websites or other written product materials before purchasing the

9

product. In Williams, for example, the Ninth Circuit found that the district court had erred in

10

granting a motion to dismiss the plaintiffs’ false advertising claims challenging statements and

11

images of fruit on the front of the defendant’s “Fruit Juice Snacks” packaging on the basis that the

12

ingredients list on the side of the package would have dispelled any false impression about those

13

claims. Williams v. Gerber Prod. Co., 552 F.3d 934, 939 (9th Cir. 2008). The district court

14

reasoned that “no reasonable consumer upon review of the package as a whole would conclude

15

that Snacks contains juice from the actual and fruit-like substances displayed on the packaging

16

particularly where the ingredients are specifically identified.” Id. (quoting Williams v. Gerber

17

Prod. Co., 439 F. Supp. 2d 1112, 1116 (S.D. Cal. 2006)). The Court of Appeals rejected this

18

reasoning, stating:

19
20
21
22
23
24
25

We disagree with the district court that reasonable consumers should
be expected to look beyond misleading representations on the front of
the box to discover the truth from the ingredient list in small print on
the side of the box. The ingredient list on the side of the box appears
to comply with FDA regulations and certainly serves some purpose.
We do not think that the FDA requires an ingredient list so that
manufacturers can mislead consumers and then rely on the ingredient
list to correct those misinterpretations and provide a shield for liability
for the deception. Instead, reasonable consumers expect that the
ingredient list contains more detailed information about the product
that confirms other representations on the packaging.
Id. at 939-940.

26

Based on the reasoning in Williams, courts have also rejected defendants’ reliance on

27

statements or disclaimers on their websites to argue that claims on product packaging are not

28

misleading. See, e.g., Hernandez v. Radio Sys. Corp., No. EDCV221861JGBKKX, 2023 WL
39

1

4291829, at *7 (C.D. Cal. May 10, 2023) (denying motion to dismiss consumer protection claims

2

where defendant pointed to statements on its website and in product manuals to show claims on its

3

packaging were not misleading and concluding that under Williams, a reasonable consumer is not

4

expected to conduct this sort of research prior to purchasing a product); Cisco Sys. Inc. v. Link US,

5

LLC, No. 18-CV-07576-CRB, 2019 WL 6682838, at *9 (N.D. Cal. Dec. 6, 2019) (“The Ninth

6

Circuit has found a disclaimer on the side of a box insufficient to cure misleading statements on

7

the front of a box, so a disclaimer ‘buried deep’ in Cisco’s website is insufficient to set a

8

reasonable consumer straight.”).

United States District Court
Northern District of California

9

Colgate ignores this well-established case law, citing a case that is entirely distinguishable,

10

Bobo v. Optimum Nutrition, Inc., No. 14CV2408 BEN (KSC), 2015 WL 13102417, at *1 (S.D.

11

Cal. Sept. 11, 2015). There, the court granted a motion to dismiss and distinguished Williams,

12

finding that the “100% WHEY” claim on the front of the package that the plaintiffs alleged was

13

misleading would not have misled a reasonable consumer who read the other statements on the

14

front of the package. Bobo, 2015 WL 13102417, at *5 (“Viewing only the information on the

15

front of the label, stated in legible text, a reasonable consumer would not be deceived or confused

16

into thinking the entire contents of the container is protein.”). Far from supporting Colgate’s

17

position, Bobo reinforces the rule that in general, clarifying statements or disclaimers do not cure a

18

misleading statement on product packaging if it requires the consumer to conduct a research

19

project (or even to flip the product over to read fine print elsewhere on the package) prior to

20

purchasing the product.

21

Stewart v. Kodiak Cakes, LLC, 537 F. Supp. 3d 1103 (S.D. Cal. 2021) also does not

22

support Colgate’s argument. There, the court concluded that where the plaintiffs’ complaint

23

referred “extensively to Defendant’s online advertising, and online advertising form[ed] a basis of

24

their claims[,]” it was not improper for the court to consider, on a motion to dismiss, exhibits

25

containing copies of webpages showing images of product labels under the doctrine of

26

incorporation by reference. 537 F. Supp. 3d at 1121-1122. In overruling the plaintiffs’ objections,

27

the court noted that the plaintiffs did not “genuinely question the authenticity of the exhibits,” id.

28

at 1121, and earlier in the discussion the court noted that “the labels have a link to their respective
40

1

product pages on Defendant’s website, and Defendant supplies their webpage where the publicly

2

available images can be found.” Id. at 1120. Colgate latches on to the latter phrase to suggest

3

that in Stewart, the court considered statements on the defendant’s website to evaluate claims on

4

product packaging because the website URL’s were printed on the packaging. In fact, the case

5

does not address that issue at all. Therefore, Colgate’s reliance on Stewart in support of its

6

contention that statements on the Product websites must be taken into account in applying the

7

reasonable consumer test is misplaced.

United States District Court
Northern District of California

8

Finally, the Court finds that Colgate’s reliance on Lizama v. H&M Hennes & Mauritz LP,

9

No. 4:22 CV 1170 RWS, 2023 WL 3433957, at *1 (E.D. Mo. May 12, 2023), is misplaced. In

10

marked contrast to this case, the plaintiff in that case alleged that he purchased a product in the

11

defendant’s “conscious choice” collection “after he ‘saw the labeling, advertising, [the

12

defendant’s] website, and read the packaging.” 2023 WL 3433957, at *4. The claims that the

13

plaintiff alleged were misleading were not made on the product label but instead, were “taken

14

from the Sustainability section of [the defendant’s] website.” Id. Under those circumstances, the

15

court found that it was “not constrained to accept Lizama’s allegations about what the website

16

says and may instead consider the content of the website in its the entirety[,]” citing case law

17

holding that “when [a] complaint alleges [the] contents of [a] website are misleading, the

18

complaint necessarily embraces the website and the Court can consider [its] contents when

19

deciding a motion to dismiss.” Id. (citing S&H Distribution, LLC v. Meyer Laboratory, Inc., 2022

20

WL 5255323, at *3 (D. Neb. Oct. 6, 2022)). Assuming Lizama is good law in the Ninth Circuit –

21

a question the Court does not decide – it is clearly distinguishable from the facts here.

22
23
24
25

For these reasons, the Court finds that Colgate has pointed to no disclaimers that render the
statements on its Products concerning recyclability to be non-misleading as a matter of law.
4. The Green Guides
The Federal Trade Commission has promulgated “Guides for the Use of Environmental

26

Marketing Claims,” codified at 16 C.F.R. 260.1, et seq. (“Green Guides”), to “help marketers

27

avoid making environmental marketing claims that are unfair or deceptive” based on the FTC's

28

“views on how reasonable consumers likely interpret [those] claims.” Id. at § 260.1(a), (d). The
41

United States District Court
Northern District of California

1

California legislature codified the Green Guides to make it “unlawful for a person to make an

2

untruthful, deceptive, or misleading environmental claim, whether explicit or implied.” Cal. Bus.

3

& Prof. Code § 17580.5. Colgate contends the Green Guides do not control reasonable

4

consumers’ understanding of the term “recyclable tube,” Motion at 2, but concedes that those

5

standards apply at least to Plaintiffs’ UCL unlawful claim.6 Colgate contends, however, that that

6

claim fails because the “recyclable” claims on the Product packaging is consistent with the Green

7

Guides. The Court disagrees.

8

The Green Guides provide that “[i]t is deceptive to misrepresent, directly or by

9

implication, that a product or package is recyclable.” 16 U.S.C. § 260.12(a). In particular, “[a]

10

product or package should not be marketed as recyclable unless it can be collected, separated, or

11

otherwise recovered from the waste stream through an established recycling program for reuse or

12

use in manufacturing or assembling another item.” Id. Under the Green Guides, “marketers can

13

make unqualified recyclable claims” only “[w]hen recycling facilities are available to a substantial

14

majority of consumers or communities where the item is sold.” 16 U.S.C. § 260.12(b)(1). “The

15

term ‘substantial majority,’ as used in this context, means at least 60 percent.” Id. The Green

16

Guides further provide that “[i]f any component significantly limits the ability to recycle the item,

17

any recyclable claim would be deceptive. An item that is made from recyclable material, but,

18

because of its shape, size, or some other attribute, is not accepted in recycling programs, should

19

not be marketed as recyclable.” 16 C.F.R. § 260.12(d).

20

Colgate contends its recyclable claims comport with these standards because “the Products

21

are compatible with the HDPE #2 recycling stream, for which recycling facilities are ‘available’ to

22

87% of consumers, which more than satisfies the ‘substantial majority’ threshold.” Motion at 20

23

(citing 16 C.F.R. § 260.12(b)(1)). This argument flies in the face of § 260.12(d), however because,

24

as discussed above, Plaintiffs have alleged that the Products, while “made from recyclable

25

material[,]” are uniformly rejected by recycling facilities because of their “shape” (which is

26
27
28

6

Because the Court does not rely on the Green Guides in finding that Plaintiffs plausibly allege
that a reasonable consumer would be misled by the recyclable claims on Colgate’s packaging, the
Court need not decide whether statements that run afoul of the Green Guides are, per se,
misleading under California law, as Plaintiffs contend.
42

1

indistinguishable from non-recyclable tubes, making it impossible to separate the Products for

2

recycling) and “some other attribute” (the risk of contamination the Products pose to the recycling

3

stream).
Colgate also contends the claims on its packaging are not misleading under the Green

4
5

Guides in light of the information it provides on the Product websites. However, it has pointed to

6

nothing in the Green Guides or the case law applying the Green Guides that suggests that this

7

argument has any more merit than the analogous argument Colgate makes as to the reasonable

8

consumer test. The Court therefore rejects this argument as well.
Therefore, the Court concludes that Plaintiffs have adequately alleged that Colgate’s

9
10

recyclable claims are misleading under the standards set forth in the Green Guides.
5. Cal. Pub. Res. Code § 42061(a)(3)(B)

United States District Court
Northern District of California

11

Colgate invokes Cal. Pub. Res. Code § 42061(a)(3)(B) in support of its assertion that the

12
13

claims on the Products are not misleading. That provision allows the California Department of

14

Resources Recycling and Recovery to grant an exemption from the general standards that govern

15

what is considered “recyclable” under Cal. Pub. Res. Code § 42355.51(d)(2)(A) & (B).7 In

16

particular, such an exemption may be granted as to:

17

materials that are trending toward meeting the requirements in
subparagraphs (A) and (B) of paragraph (2) of subdivision (d) of
Section 42355.51 and measurable increase of statewide collection and

18
19
20
21
22
23
24
25
26
27
28

7

These subsections provide, in relevant part:
2) Subject to paragraph (3), a product or packaging is considered recyclable in the state if,
based on information published by the department pursuant to subparagraph (B) of
paragraph (1), the product or packaging is of a material type and form that meets both of
the following requirements:
(A) The material type and form is collected for recycling by recycling programs for
jurisdictions that collectively encompass at least 60 percent of the population of the
state.
(B) (i) The material type and form is sorted into defined streams for recycling
processes by large volume transfer or processing facilities, as defined in
regulations adopted pursuant to Section 43020, that process materials and
collectively serve at least 60 percent of recycling programs statewide, with the
defined streams sent to and reclaimed at a reclaiming facility consistent with the
requirements of the Basel Convention.

Cal. Pub. Res. Code § 42355.51(d)(2)(A) & (B)(i).
43

sorting rates through either statewide recycling programs or
alternative programs, such as take-back systems, and for which the
continued increase in the collection, sorting, and viable responsible
end market development the department determines will be disrupted
by a loss of a recyclable designation.

1
2

United States District Court
Northern District of California

3
4

Cal. Pub. Res. Code § 42061(a)(3)(B). Colgate does not dispute, however, that it has not received

5

such an exemption. Therefore, Section 42061 has no bearing on the Court’s analysis.

6

D.

Whether Plaintiffs Have Standing to Seek Injunctive Relief

7

Colgate challenges Plaintiffs’ standing to seek injunctive relief on two grounds: 1) because

8

“they are on notice that the Products may not be accepted by their local municipal recycling

9

facilities, and they have access to updated acceptance information via objective, third-party

10

sources[,]” Reply at 11-12 (citing FAC ¶¶ 57–59); and 2) the Product labels have now been

11

modified to advise consumers that their “community may not yet accept tubes for recycling,” so

12

they should “check locally” to confirm. Motion at 22 (citing Spelman Decl., Exs. 7, 12). The

13

Court has already found that Exhibits 7 and 12 are not subject to judicial notice and therefore

14

declines to address the second argument. The question of whether changes in Colgate’s labels

15

have cured any deceptive statements such that Plaintiffs’ claims for injunctive relief may be moot

16

is more appropriately addressed at a later stage of the case when the factual record has been

17

developed. The Court also rejects Colgate’s first argument.

18

“[A] previously deceived consumer may have standing to seek an injunction against false

19

advertising or labeling, even though the consumer now knows or suspects that the advertising was

20

false at the time of the original purchase,” because “[k]nowledge that the advertisement or label

21

was false in the past does not equate to knowledge that it will remain false in the future.”

22

Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018). In Davidson, the plaintiff

23

brought FAL, CLRA, UCL, and fraud claims against the manufacturer of pre-moistened wipes

24

that it marketed as “flushable” where the wipes were not truly flushable. 889 F.3d at 961-962,

25

964. The district court dismissed the injunctive relief claim, finding that the plaintiff lacked

26

standing because she had no intention of purchasing the same product in the future and therefore

27

had no risk of future injury. Id. at 963, 967. The Ninth Circuit reversed, however, finding that a

28

plaintiff seeking injunctive relief may demonstrate an injury-in-fact sufficient to confer Article III
44

1

standing based on “plausible allegations that [they] might purchase the product in the future,

2

despite the fact it was once marred by false advertising or labeling, as [they] may reasonably, but

3

incorrectly, assume the product was improved.” Id. at 970.

4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15

Here, the allegations in the FAC are precisely tailored to the standard articulated in
Davidson. In particular, the FAC alleges as follows:
Plaintiffs continue to desire to purchase from Defendant toothpaste
tubes that are truly recyclable as reasonable consumers understand the
term. However, Plaintiffs are unable to determine at the point of
purchase if recycling facilities that recycle the Products are available
to a substantial majority of consumers or communities in California.
Plaintiffs understand that the design and composition of the Products
may change over time. But as long as Defendant may use the phrase
“Recyclable Tube” and similar representations on Products that are
not recyclable as reasonable consumers understand the term, then
when presented with Defendant’s packaging, Plaintiffs continue to
have no way of determining whether the recyclability representations
are in fact true. Thus, Plaintiffs are likely to be repeatedly presented
with false or misleading information when shopping and they will be
unable to make informed decisions about whether to purchase
Defendant’s Products and will be unable to evaluate the different
prices between Defendant’s Products and competitors’ Products.
Plaintiffs are further likely to be repeatedly misled by Defendant’s
conduct, unless and until Defendant is compelled to ensure that its
recycling representations are accurate.

16

FAC ¶ 60. At the pleading stage of the case, this is sufficient to establish standing to seek

17

injunctive relief.

18

The Court rejects Colgate’s reliance on Sinatro v. Barilla Am., Inc., 635 F. Supp. 3d 858

19

(N.D. Cal. 2022) in support of a contrary conclusion. There, the plaintiffs alleged that they were

20

misled by claims on the package that they understood meant that the product was made in Italy.

21

635 F. Supp. 3d at 865. They sought injunctive relief on their claims, even though they were now

22

on notice that the product was not made in Italy, asserting that under Davidson, they faced “an

23

imminent or actual threat of future harm from being deceived by the [the claims on the product].”

24

Id. at 874. In particular, they pointed “to their allegations that they continue to see the products

25

available for purchase and desire to purchase them again if the ‘Challenged Representation was in

26

fact true,’ that is, if the products were made or manufactured in Italy using ingredients from Italy.”

27

Id. The Court in Sinatro distinguished Davidson, however, finding that it was “implausible to

28

expect such facts to come to pass.” Id. at 875.
45

The facts here are more similar to Davidson than they are to Sinatro. Plaintiffs here, like

1
2

the Plaintiffs in Davidson, may reasonably (but incorrectly) believe that future claims of

3

recyclability are accurate given Colgate’s proclaimed ongoing efforts to ensure that its toothpaste

4

tubes end up being actually recycled. In contrast, there is nothing in Sinatro that suggests that the

5

plaintiffs in that case alleged any facts that would give rise to a plausible inference that the

6

company was likely to move production of its product to Italy. Therefore, the Court rejects

7

Colgate’s argument that Plaintiffs do not have standing to seek injunctive relief.

8

IV.

9
10

CONCLUSION
For the reasons stated above, the Motion is DENIED.
IT IS SO ORDERED.

United States District Court
Northern District of California

11
12
13
14

Dated: February 6, 2024
______________________________________
JOSEPH C. SPERO
United States Magistrate Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
46