Antitrust Law Daily Wrap Up, ADVERTISING—E.D.N.Y.: Kids toothpaste mislabeling claims continue, (Mar 16, 2026)

By Jody Coultas, J.D.

Whether Tom’s of Maine misrepresented that its kids toothpaste products were safe and healthy despite allegedly containing lead and arsenic were not preempted.

The federal district court in Brooklyn, New York mostly declined to dismiss New York General Business Law false labeling claims filed by a consumer alleging the company mislabeling its kids toothpaste. A consumer alleged that Tom’s of Maine falsely advertised that its Kid’s Natural Fluoride-Free Toothpaste Silly Strawberry and Toddler Natural Fluoride-Free Toothpaste Mild Fruit products were healthy for kids despite allegedly containing lead and arsenic and dangerous levels. The court concluded that the consumer adequately stated claims for misrepresentation under the New York General Business Law and negligence per se. However, the court found that claims based on omissions were preempted by the Federal Food, Drug, and Cosmetics Act (FDC Act). Also, the court dismissed the unjust enrichment claims as duplicative of the GBL claim (White v. Tom’s of Maine, Inc., No. 25-CV-00662 (OEM) (LKE) (E.D.N.Y. Mar. 11, 2026)).

The consumer alleged that Tom’s of Maine falsely represented that its kids toothpaste products were healthy for kids. Specifically, the consumer argued that independent testing of the Silly Strawberry product that he purchased detected lead at 0.455 mg/Kg or 455 parts per billion and arsenic at 0.068 mg/kg or 68 parts per billion. Further, the consumer cited two webpages allegedly reporting additional independent testing that has indicated lead and arsenic in the Kid’s Natural Fluoride-Free Toothpaste Silly Strawberry Product and lead in the Toddler Natural Fluoride-Free Toothpaste Mild Fruit Product at “dangerous levels.” The product packages do not identify lead or arsenic as ingredients, nor do they include a warning that lead or arsenic is or may be included in the Products.

Standing. Overpayment and purchasing a product one would not otherwise buy absent the allegedly false advertising are concrete injuries-in-fact, according to the court. Tom’s of Maine argued that the consumer lacked standing because the lead and arsenic levels did not pose any material safety risk or render the products unsafe, unusable, or worthless. The consumer alleged that he paid more for the toothpaste than he otherwise would have as a result of the alleged deceptive healthy claims. The Second Circuit has held that a plaintiff plausibly alleges an injury by stating that they would not have purchased the products or paid as much for them had they known the company failed to adequately test for heavy metals. Also, overpayment is a sufficient economic injury for Article III standing.

Preemption. To the extent the consumer alleged the labels were misleading because they misrepresent the toothpastes as safe and healthy, the claims were not preempted. Tom’s of Maine argued that the misrepresentation and omission theories were preempted by the FDC Act because the consumer sought to impose requirements that were different than the FDC Act. The FDC Act preempts “any state law that provides for labeling requirements that are not exactly the same as those set forth in the FDC Act and its regulations.” Because the claim that Tom’s of Maine misrepresented that the toothpaste was safe and health for kids, paralleled the FDC Act and sought to impose a requirement that the label not be false or misleading, the claim was not preempted.

However, the court found that the claims relying on the omission of lead and arsenic from the ingredients list were preempted by the FDC Act. The Second Circuit has not ruled whether an omission theory is expressly preempted by the FDC Act. The consumer did not allege that lead or arsenic were components of the toothpaste, but merely contaminants. Also, the consumer did not allege alleged that lead or arsenic have any “technical or functional effect” and confirmed that he does not concede that the lead or arsenic are “incidental ingredients.” Therefore, the consumer failed to allege that lead and arsenic are “ingredients” and, thus, not plausibly alleged that Tom’s of Maine was required, under the FDC Act, to include lead or arsenic on the labels.

GBL claims. The consumer adequately stated GBL claims based on alleged misrepresentations made by Tom’s of Maine, according to the court. There was a plausible link between the belief that the toothpaste was “healthy,” or safe for children and the allegation that the toothpaste contains potentially unsafe levels of lead or arsenic. Also, the consumer alleged that he would not have purchased the toothpaste or that he would not have paid as much had it not been marketed as safe or healthy for kids. This was sufficient to adequately allege a price-premium theory. To the extent that Tom’s of Maine argued the consumer failed to allege the existence of comparable products, courts have denied motions to dismiss GBL § 349 claims despite the plaintiffs not identifying competitors or prices in their complaints, and the same outcome was warranted here.

Because the GBL claims based on alleged omissions were preempted, the court did not consider whether the claims were adequate.

Negligence. Tom’s of Maine was denied dismissal of the negligence per se claim by the court. The court noted that plaintiffs have a private cause of action for a negligence per se claim for alleged FDC Act violations. The court rejected Tom’s of Maine’s argument that the consumer failed to allege facts showing that the level of lead or arsenic was harmful, which was a requirement for adulteration. Also, the consumer adequately alleged that the labeling was false or misleading, which was a requirement for misbranding.

Unjust enrichment. The court dismissed the unjust enrichment claim as duplicative. The unjust enrichment claims rested upon the same theory as the price premium theory that underlies his GBL claims: that Tom’s of Maine was unjustly enriched in realizing revenues to the consumer’s detriment even though the products were misrepresented.

Attorneys: Charles Thomas Schimmel (Sultzer & Lipari, PLLC) for Douglas White. Glenn S. Kerner (Greenberg Traurig LLP) for Tom's of Maine, Inc.

Companies: Tom's of Maine, Inc.

Cases: Advertising StateUnfairTradePractices NewYorkNews