Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Toothpaste labeling lawsuit advances against Colgate-Palmolive, (Jun 26, 2026)

By George Basharis, J.D.

Consumers may pursue claims that safety and health-related statements misled buyers.

Colgate-Palmolive Co. must face consumer protection claims alleging that its toothpaste packaging and marketing overstated the products' safety and suitability for everyday use despite alleged heavy metal contamination. Statements such as “Whole Mouth Health” and “Responsibly Made” could plausibly mislead reasonable consumers, a federal court in New York concluded. However, the court dismissed claims based on Colgate-Palmolive’s alleged failure to disclose the presence of lead or mercury, finding they were expressly preempted by federal drug-labeling law. The ruling also narrowed the case on standing grounds and dismissed the consumers’ fraud-by-omission and unjust enrichment claims (Brower v. Colgate-Palmolive Co., No. 1:25-cv-03348-JPO (S.D.N.Y. Jun. 25, 2026)).

Background. Consumers brought the putative class action over multiple Colgate toothpaste products. According to the complaint, Colgate-Palmolive marketed the products with statements including “Protects teeth, tongue, cheeks, [and] gums,” “Helps Reverse Early Gum Damage,” “Releases Pure Oxygen Bubbles for a Clean, Fresh Sensation,” and “Responsibly Made.” The consumers alleged that the products contained or were at risk of containing heavy metals, including lead and mercury, and that Colgate-Palmolive knew or should have known about the alleged contamination but did not disclose it. They also alleged that the company failed to disclose that it was not adequately testing the products or their ingredients for heavy metals.

The lawsuit asserted 13 claims under consumer protection laws in New York, Minnesota, Illinois, Arizona, New Jersey, and California, along with common-law claims for fraud by omission and unjust enrichment. Colgate-Palmolive moved to dismiss the case in its entirety, arguing that the claims were preempted by federal law, that several consumers lacked standing, that the complaint failed to state viable claims, and that some claims were untimely.

Federal preemption. The court drew a distinction between claims based on affirmative representations and claims based on omissions. It concluded that federal law did not preempt challenges to statements that Colgate-Palmolive voluntarily placed on product labels or in marketing materials. Those claims, the court explained, paralleled the Federal Food, Drug, and Cosmetic Act’s prohibition against false or misleading labeling of drugs and cosmetics. The court also rejected Colgate-Palmolive’s argument that an FDA regulation governing over-the-counter anticaries drugs broadly insulated the challenged statements from state-law scrutiny. Although the regulation permits products containing approved active ingredients to be sold without additional FDA approval and authorizes certain decay-prevention claims, it does not immunize all advertising or labeling statements made by manufacturers or address the specific representations challenged by the consumers.

The court did not reach the same conclusion, however, for claims based on Colgate-Palmolive’s alleged failure to disclose lead or mercury. Because federal law does not require labels to disclose heavy metal contaminants, requiring such disclosures under state law would impose obligations different from or in addition to federal requirements. Therefore, the court dismissed those claims. Consequently, the consumers could proceed on claims challenging Colgate-Palmolive’s existing statements, but they could not pursue claims that would require the company to add new disclosures to federally regulated drug labels.

Standing. The court also examined whether individual consumers plausibly alleged an injury tied to the specific toothpaste products they purchased. The consumers alleged that they paid a price premium for products that allegedly contained lead or mercury. To pursue those claims, they had to plausibly allege that the products they purchased contained the alleged contaminants.

To support those allegations, some consumers relied on a Lead Safe Mama study based on independent laboratory testing, along with tests commissioned for the litigation, rather than testing their own purchases. The court found that evidence insufficient for several product-specific claims. The study did not identify the number of samples tested or where the tested products were purchased, making it impossible to link them to the consumers’ purchases. The commissioned tests provided even less detail, omitting when and where the testing occurred, who performed it, and how many units were tested.

As a result, several consumers lacked standing to pursue certain product-specific claims, and some were dismissed from the action because the complaint failed to connect the testing to the products they purchased. The court also dismissed mercury-based claims brought by consumers whose own testing did not detect mercury at a level sufficient to support an inference of injury, leaving only their lead-based claims.

Consumer protection claims. Colgate-Palmolive next argued that the consumers failed to identify any false or materially misleading statement. The court disagreed, concluding that statements such as “completely safe,” tested “at every stage of the product life cycle,” “Whole Mouth Health,” and “Responsibly Made” could plausibly mislead a reasonable consumer if the products contained lead or other heavy metals.

Addressing the New York claims, the court explained that whether a label would mislead a reasonable consumer generally presents a factual question. It concluded that consumers could reasonably interpret those statements as indicating the products did not contain heavy metals. The court also rejected Colgate-Palmolive’s argument that the complaint failed because it did not establish a material safety risk, finding the allegations sufficient at the pleading stage to support claims that lead, mercury, and other heavy metals present at least some risk to consumers.

The court reached the same conclusion with respect to the California claims under the Consumers Legal Remedies Act and Unfair Competition Law. It distinguished cases involving statements unrelated to the alleged contaminant, explaining that “Whole Mouth Health” and “Responsibly Made” directly address product safety and quality. Because those representations related directly to the alleged contamination, the complaint adequately alleged that reasonable consumers could be misled.

The court also addressed additional state-specific arguments. Colgate-Palmolive argued that the claims asserted under Minnesota law failed because the consumers did not allege a public benefit. The court rejected that argument as to claims under the state’s False Statement in Advertising Act and Prevention of Consumer Fraud Act, finding that the challenged statements appeared on product packaging distributed nationwide, the complaint sought injunctive and declaratory relief, and the products were widely used consumer goods, including by children. Those allegations were sufficient to satisfy the public-benefit requirement at the pleading stage.

However, the court dismissed the claim under Minnesota’s Uniform Deceptive Trade Practices Act. It concluded that the only Minnesota consumer failed to allege irreparable injury or a real threat of future harm because the complaint did not allege that the consumer intended to purchase Colgate products again but would be unable to rely on the challenged representations. The court nevertheless allowed the Minnesota false advertising claim to proceed despite Colgate-Palmolive’s argument that the complaint did not expressly allege the consumer viewed the challenged statements in Minnesota. Because the complaint alleged purchases from Target stores in Minneapolis, the court found it reasonable to infer that the consumer encountered the packaging there. The court likewise rejected Colgate-Palmolive’s argument that the challenged statements could not mislead reasonable consumers under the Illinois, Arizona, and New Jersey consumer protection statutes, allowing those claims to survive to the same extent as the other misrepresentation claims.

Remaining issues. The court dismissed the fraud-by-omission claim because it was expressly preempted. It also dismissed the unjust enrichment claim, concluding that it duplicated the factual allegations and requested relief underlying the statutory claims without identifying a distinct injury. Colgate-Palmolive also sought dismissal of claims based on purchases made before 2022, arguing that New York’s three-year statute of limitations for consumer protection claims applied. The court found that argument premature because the complaint did not allege enough facts to determine when the products were purchased or which products corresponded to particular time periods. Because an “ironclad” statute-of-limitations defense was not apparent from the face of the complaint, dismissal was unwarranted.

The Case is No. 1:25-cv-03348-JPO.

Judge: Oetken, J.

Attorneys: Rebecca A. Peterson (Hecht Partners LLP) for Rebecca Brower. Gina Louise Faldetta (Greenberg Traurig, LLP) for Colgate-Palmolive Co.

Companies: Colgate-Palmolive Co.

Cases: Advertising StateUnfairTradePractices NewYorkNews