United States District Court, S.D. New York
LORI CANALE, individually and on behalf of all others similarly situated, Plaintiff,
COLGATE-PALMOLIVE CO., Defendant.
A. Bursor Joseph I. Marchese Frederick J. Klorczyk III Philip
L. Fraietta Bursor & Fisher, P.A. New York, New York
Counsel for Plaintiff.
Nathaniel J. Kritzer Richard W. Nicholson Kirkland &
Ellis LLP New York, New York Robyn E. Bladow Kirkland &
Ellis LLP Los Angeles, California Counsel for Defendant.
OPINION & ORDER
Lori Canale brings this putative class action arising out of
allegedly misleading labeling on whitening toothpastes sold
by Defendant Colgate-Palmolive Co. Before the Court is
Defendant's motion to dismiss or stay the case. (Doc.
26.) For the reasons stated below, the motion is GRANTED in
part and DENIED in part.
sells Colgate Optic White and Colgate Optic White
Platinum toothpastes (together the "Optic
White products") at a premium price to "capitalize
on consumer demand for whitening toothpaste." (Compl.
¶¶ 1, 2.) Since October 2013, Defendant has
represented that Colgate Optic White toothpaste "Goes
Beyond Surface Stain Removal to Deeply Whiten" teeth.
(Id. ¶ 2.) Since February 2014, Defendant has
represented that Colgate Optic White Platinum toothpaste
"Deeply Whitens More Than 3 Shades." (Id.)
Both toothpastes contain the same supposedly whitening
ingredient - 1% hydrogen peroxide. (Id.) Plaintiff
alleges, however, that 1% hydrogen peroxide does not in fact
"go beyond surface stain removal" or "deeply
whiten teeth because there is not enough hydrogen peroxide in
toothpaste, and the peroxide is not in contact with teeth for
long enough." (Id.) Plaintiff bought Colgate
Optic White based on the claims Defendant made about Colgate
Optic White's whitening capabilities, and was
"deceived into believing that Optic White goes beyond
surface stains to deeply whiten teeth." (Id.
¶¶ 3, 4.) Plaintiff was injured because the
toothpaste she purchased did not deeply whiten her teeth or
whiten "intrinsic stains." (Id. ¶ 4.)
Defendant's Marketing of Optic White Products
complains of both the toothpastes' packaging and two
television commercials Defendant used to market its products.
First, the Optic White labels state that the toothpaste
"Goes Beyond Surface Stain Removal To Deeply Whiten
Teeth, " that it "Deeply Whiten[s], " and that
"Optic White toothpaste is clinically proven to whiten
teeth with peroxide [and] goes beyond surface stains unlike
ordinary toothpastes." (Id. ¶ 12.) The
Optic White Platinum labels state that the toothpaste
"Deeply Whitens More Than 3 Shades." (Id.
Plaintiff complains of television commercials advertising the
toothpastes. One of those commercials depicts a shell
"made of calcium that can absorb stains like teeth"
that is dipped in red wine for 10 hours. (Id. ¶
13.) The commercial illustrates the toothpaste's
"supposed deeply whitening capabilities" by
comparing one side of the shell -which was brushed with
regular whitening toothpaste and remains dark - with the
other side - which was brushed with Optic White toothpaste
and appears white. (Id. ¶ 14.) Beneath this
shell depiction, text appears stating, "Colgate Optic
White can penetrate to work below the tooth's
surface." (Id.) Another commercial zooms in on
several teeth and depicts "sparkly Optic White
particles" whitening the teeth, while stating,
"Unlike the leading whitening toothpaste, Colgate Optic
White toothpaste goes beyond surface stains to deeply whiten
teeth." (Id. ¶¶ 16, 17.)
to Plaintiff, "toothpastes cannot go beyond surface
stains to deeply whiten teeth because peroxide in toothpaste
does not function as a whitening agent on intrinsic
stains." (Id. ¶ 12.) Optic White
toothpastes thus only reach surface stains by abrading the
surface of the teeth. (Id.) Plaintiff alleges,
citing various studies and scholarly articles, that
"dentists agree that peroxide in toothpaste does not
work on intrinsic stains because the amount of peroxide in
toothpaste is too small and gets rinsed away before it can
deeply whiten teeth." (Id. ¶ 19; see
Id. ¶¶ 19-32.)
2012, the National Advertising Division of the Council of
Better Business Bureaus ("NAD") cautioned Defendant
to avoid attributing whitening improvement from Optic White
toothpastes to its peroxide ingredient. (Id. ¶
33.) NAD recommended that Defendant discontinue any claims
suggesting that hydrogen peroxide in toothpaste deeply
whitens or whitens below surface stains, as Defendant
"did not have sufficient evidence to support th[at]
message." (Id.) Defendant did not change its
advertising claims. (Id.)
2014, NAD conducted a compliance inquiry relating to the
following claims on Optic White's packaging: "Goes
Beyond Surface Stain Removal to Deeply Whiten, "
"This Unique Formula is Clinically Proven to Whiten
Teeth With Peroxide, " and "Goes Beyond Surface
Stains Unlike Ordinary Toothpastes." (Id.
¶ 34.) In response to this inquiry, Defendant claimed
that it had "reformulated" Optic White and that new
evidence supported its claims about the toothpaste's
intrinsic whitening capabilities. (Id. ¶ 35.)
NAD disagreed because any reformulations did not change the
amount of peroxide in the toothpaste and did not address
"Optic White's ability to provide whitening benefits
below the tooth surface." (Id.) NAD concluded
that Defendant's 2014 claims were "not markedly
different from the claim [NAD] recommended be discontinued in
2012, " and thus that Defendant should remove the word
"deeper" from its advertising claims and
"avoid any implication that the Optic White product
intrinsically whitens teeth." (Id.) Defendant
again did not accept NAD's recommendation. (Id.)
On July 10, 2014, NAD referred the matter to the Federal
Trade Commission ("FTC"). (Doc. 28 Exs. 1-2.) The
FTC's investigation is ongoing. (See Id. Exs.
3-7; Doc. 39 Exs. 9-17.)
filed her putative class action on May 3, 2016. She brings
claims for breach of express warranty individually and on
behalf of all persons in the United States who purchased
Optic White on or after October 1, 2013, or who purchased
Optic White Platinum on or after February 1, 2014.
(Id. ¶ 5.) She also brings claims for violations
of Sections 349 and 350 of the New York General Business Law
("GBL") individually and on behalf of all
purchasers of Optic White products in New York.
(Id.) Section 349 makes unlawful "[d]eceptive
acts or practices in the conduct of any business, trade or
commerce." NY. Gen. Bus. Law § 349(a). Section 350
makes unlawful "[f]alse advertising in the conduct of
any business, trade or commerce." Id. §
350. The basis for all three claims is Defendant's claim
that its Optic White products "go beyond surface stains
to deeply whiten teeth, " which Plaintiff alleges is
false and misleading. (Compl. ¶ 53; see Id.
¶¶ 59, 68.)
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. "While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555
(alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 "marks
a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, ... it does not unlock
the doors of discovery for a plaintiff armed with nothing
more than conclusions." Iqbal, 556 U.S. at
considering whether a complaint states a claim upon which
relief can be granted, the court "begin[s] by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth,
" and then determines whether the remaining well-pleaded
factual allegations, accepted as true, "plausibly give
rise to an entitlement to relief." Id. at 679.
Deciding whether a complaint states a plausible claim for
relief is "a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense." Id. "[W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it
has not 'shown' - 'that the pleader is entitled
to relief.'" Id. (alteration omitted)
(quoting Fed.R.Civ.P. 8(a)(2)).
first argues that Plaintiffs claims under state law are
expressly preempted by the Food Drug & Cosmetics Act
("FDCA"), and should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(6).
argues that as both a drug and a cosmetic, its Optic White
products are subject to "broad" regulation by the
Food and Drug Administration ("FDA"). (Doc. 27
("D's Mem."), at 3-4.) Where a product
qualifies as both a drug and a cosmetic under the FDCA, it is
"subject to the stricter requirements applicable to
drugs." Elkindv. Revlon Consumer Prods. Corp.,
No. 14-CV-2484, 2015 WL 2344134, at *7 (E.D.N.Y. May 14,
2015) (citing United States v. Article . . . Consisting
of 216 Cartoned Bottles, More or Less, Sudden Change,409 F.2d 734, 739 (2d Cir. 1969)); see Estee Lauder, Inc.
v. U.S. Food & Drug Admin.,727 F.Supp. 1, 2 (D.D.C.
1989) ("If a product is both [a cosmetic and a drug], it
must comply with the stricter requirements applicable to
drugs."). In general, manufacturers are prohibited from
selling drugs with "false or misleading" labeling.
See 21 U.S.C. § 331(a) (prohibiting
introduction into interstate commerce of misbranded drugs);
id. § 352(a)(1) (drug is misbranded "[i]f
its labeling is false or misleading in any particular").
Further, "[u]nder the [FDCA], a new drug may not enter
interstate commerce unless FDA determines that it is
generally recognized as safe and effective ... for the
particular use described in its product labeling."
NRDC, Inc. v. U.S. Food & Drug Admin., 710 F.3d
71, 75 (2d Cir. 2013) (citing 21 U.S.C. §§
321(p)(1), 355(a)). In general, the FDA must approve new
drugs individually. Id. In some cases, however, the
FDA will issue a "monograph, " which "sets out
the FDA-approved active ingredients for a given therapeutic
class of [over-the-counter] drugs and ...