Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Suit alleging presence of PFAS in mouthwash preempted, (Jul 10, 2025)

By Kenneth H. Ryesky, M.B.A., J.D.

Geographically and chronologically disparate purchases of allegedly contaminated mouthwash were insufficient to establish standing based upon a "systemic contamination of the product line" inference.

The federal district court judge in New York City has partially granted dismissal motions of a putative class action lawsuit alleging toxic "forever chemicals" in a mouthwash advertised and labeled as "natural." Three of the six named plaintiffs were found to lack standing to bring the lawsuit at all, and all were found to lack standing to demand injunctive relief. The claims of the remaining three defendants based on the statutes of California, Illinois, and New York survived dismissal, except to the extent that they were preempted by the federal Food, Drug, and Cosmetic Act (FDCA). The state common law claims also survived dismissal, except for the New York unjust enrichment claim. The remaining defendants were given leave to replead their dismissed common law constructive fraud and New York unjust enrichment claims because this ruling was the first time the court had apprised the plaintiffs of the infirmities in those claims (Esquibel v. Colgate-Palmolive Co., No. 1:23-cv-00742-LTS-VF (S.D.N.Y. June 27, 2025)).

Background. Polyfluoroalkyl and perfluoroalkyl substances (collectively, PFAS) are a class of synthetic organofluorine chemical compounds that have been scientifically linked to ill health effects in humans and animals. PFAS are often referred to as "forever chemicals" because they decompose slowly if at all, and are not readily excreted from the body.

Tom's of Maine, Inc. (TOM) produces and markets an eponymous line of personal healthcare products, including toothpastes and mouthwashes. A majority of TOM shares are owned by the Colgate Palmolive Co. (Colgate).

Some consumers filed a putative class action lawsuit against TOM and Colgate, alleging that TOM's mouthwashes, which are promoted, advertised, and labeled as "natural" and containing only natural products, in fact contain PFAS. The first complaint was dismissed because the single bottle of mouthwash alleged to have contained PFAS was not actually purchased by any of the plaintiffs. Following purchase and testing of additional TOM mouthwashes, an amended complaint was filed. TOM and Colgate moved to dismiss the latest complaint as amended.

The operative complaint alleged counts based upon the California consumer protection laws and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA).

Standing. In ruling on the facial challenge of standing, the court found that three of the six named plaintiffs had standing to bring the lawsuit while the other three did not. The three who were found to have standing each alleged that a bottle of mouthwash they actually purchased was tested and found to contain PFAS. The other three did not base their allegations on test results of mouthwash bottles they had purchased, but asserted "systemic contamination of the product line" as the basis for their standing to sue. The court found that these three failed to "meaningfully link the results of their independent testing to the products actually purchased." The products purchased by these latter three defendants were from geographically disparate sources at varying times ranging up to a year before the testing of the four total bottles tested.

TOM and Colgate also impugned the validity of the test results alleged by the plaintiffs. The court rejected this factual challenge to standing, finding that "[t]est methodology and interpretation issues need not be resolved at the pleading stage."

The court found that none of the plaintiffs had standing to sue for injunctive relief. On this issue, the plaintiffs asserted that they would purchase the mouthwash in the future if the PFAS contamination were to be eliminated. This was not an assertion that an injunction was necessary in order to prevent ongoing or future injury.

State statute claims. As an initial matter, the court found that the state law claims implicated the heighted pleading standard for fraud, and that this had been satisfied.

The plaintiffs who had standing were found to have plausibly pleaded their FAL claim; their pleading of reliance under the price premium theory was not grounded upon an advertising omission, but upon an alleged misrepresentation in the use of "natural" to promote and label the product to a reasonable consumer. The judge accordingly denied the motions by TOM and Colgate to dismiss the FAL claim, and for similar reasons denied the motion to dismiss the CLRA claim. The UCL claim was likewise upheld, except to the extent that it was based upon violation of the federal Food, Drug, and Cosmetic Act (FDCA), which has no private right of action and preempts the California statute.

For reasons analogous to the claims under the California statutes, the plaintiffs were found to have plausibly pleaded their claim under the Illinois statute.

Common law claims. Although the plaintiffs lack standing to bring state statutory claims on behalf of individuals who do not reside in their own states, the court ruled that there may be a basis to bring "common law claims made on a nationwide basis." The court found here that "inquiry into whether any state common law beyond the domiciles of the three named plaintiffs is relevant is best resolved at the class certification stage" and denied the dismissal motions with respect to such claims.

The three remaining plaintiffs being residents of Illinois, California, and New York, the court found that the claims under the common law of those states were properly before it, and ruled on those claims. The common law fraud claims for those three states were found to have been plausibly pleaded. The common law constructive fraud claims for California, Illinois, and New York all require a showing of fiduciary duty, which was not plausibly pleaded by the plaintiffs; the dismissal motions by TOM and Colgate were granted on those claims.

The "basic requirements for unjust enrichment" for California, Illinois, and New York were all plausibly pleaded, but beyond that, New York law requires an explanation as to how the unjust enrichment assertion alleges something more than what is alleged in other causes of action. Here, the remaining plaintiffs' New York unjust enrichment claim was "merely duplicative" of the other allegations, and was thus dismissed.

The Case is No. 1:23-cv-00742-LTS-VF.

Judge: Swain, L.

Attorneys: Daniel Harris Markowitz (Sultzer & Lipari, PLLC) for Abigail Esquibel. Keith Edward Smith (Greenberg Traurig, LLP) for Colgate-Palmolive Co.

Companies: Colgate-Palmolive Co.

Cases: Advertising StateUnfairTradePractices NewYorkNews