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Canale v. Colgate-Palmolive Co.

United States District Court, S.D. New York

June 23, 2017

LORI CANALE, individually and on behalf of all others similarly situated, Plaintiff,
v.
COLGATE-PALMOLIVE CO., Defendant.

          Scott 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

          CATHY SEIBEL, U.S.D.J.

         Plaintiff 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.

         I. BACKGROUND

         Defendant sells Colgate Optic White[1] and Colgate Optic White Platinum[2] 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.)

         A. Defendant's Marketing of Optic White Products

         Plaintiff 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. ¶11-)

         Second, 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.)

         According 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.)

         In 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.)

         In 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.)

         Plaintiff 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.)[3] 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.)

         II. DISCUSSION

         A. Legal Standard

         "To 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 678-79.

         In 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)).

         B. Preemption

         Defendant 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).

         Defendant 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 ...


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