A FEDERAL JUDGE in San Francisco wrestled Tuesday with a metaphysical question: is a toothpaste tube made of completely recyclable materials really recyclable if all of the waste processors refuse to accept the tube at their recycling facilities?
U.S. Magistrate Judge Joseph Spero said it was not, and allowed plaintiffs to proceed with a deceptive advertising case against the toothpaste manufacturer.
The dispute began in January 2022, when Roman Weingartner of San Francisco purchased a tube of Tom’s of Maine toothpaste at a store near his home. The toothpaste came in a box that said “The first of its kind recyclable tube.”
Weingartner alleged in court documents that when he bought the toothpaste, he read the statement on the box and “believed that it was recyclable,” and that “he would be able to recycle the [Tom’s tube] through his curbside recycling program.” He later learned that “his municipal recycling program does not accept toothpaste tubes for recycling.”
Weingartner said if he had known that Tom’s toothpaste was “only theoretically recyclable and that recycling facilities for [the toothpaste] are not available to a substantial majority of consumers or communities in California, he would not have purchased them, or at a minimum, he would have paid less for them.”
Kristin Della of Ridgecrest in California’s Kern County had a similar disappointment when she bought a “recyclable tube” of Colgate toothpaste at her local Walmart.
Tom’s and Colgate are both toothpaste brands manufactured by Colgate-Palmolive Company, a public company trading on the New York Stock Exchange.
California law says that when a company advertises a product for sale in the state, it may not use misleading or deceptive statements to do so. If it violates that law, consumers who were misled or deceived may sue the company for damages and may also ask the court to bar the company from continuing to make the misleading or deceptive statements in the future.
All plastics not created equal
In August 2023, Weingartner and Della filed a lawsuit against Colgate-Palmolive in federal court in San Francisco alleging that the company’s advertisements were in violation of California law. Central to their claims was the allegation that recycling facilities were not accepting toothpaste tubes and therefore it was misleading for Colgate-Palmolive to say that Tom’s and Colgate tubes were recyclable.
Weingartner and Della brought their claims as a class action and alleged that the class of misled and deceived consumers had claims collectively in excess of $5 million.
They offered two reasons why the tubes were not accepted. First, they said that the recycling facilities wouldn’t accept a tube made with recyclable materials because the tubes of other toothpaste companies were not recyclable and the processors couldn’t readily separate them.
Second, they alleged that the residual toothpaste in the tubes could not be readily removed. Apparently, not only is it impossible to put toothpaste back in a tube; it isn’t easy to get the last dollops out.
Colgate-Palmolive moved to dismiss the complaint before trial on the grounds that its allegations were not “plausible.” Federal courts can cut short the life of a lawsuit if the allegations in a complaint don’t pass the plausibility standard.
In a pleading that expressed great pride in the company’s product, Colgate-Palmolive said that it spent five years trying to produce a recyclable toothpaste tube, something it alleged had not been done before. In 2019, it succeeded in producing a tube “made primarily of HDPE #2 plastic that can be recycled but still maintains ‘nice squeezability.’”
According to the company, the plastic it used was “recyclable within the well-established recycling stream for HDPE #2 plastic packaging — while retaining the look and feel of traditional toothpaste tubes, a significant engineering feat.”
The company added that even though it patented the product design, nonetheless it “committed to sharing information and learnings about the design to all interested parties, and invested time and resources to work with stakeholders … to speed the transition to recyclability across the tube market.”
The company said it did that because it wanted “to ensure that its recyclable tubes, and other manufacturers’ tubes, are accepted for recycling … across the country and around the world.”
Recycled arguments
As for the plaintiffs’ allegations, the company said that some were “nonsensical.” The material it used fell within the recyclable category and the company could not directly control the practices of individual recycling facilities. Moreover, it had various disclaimers and caveats about the recyclability claim on the box and also on the website it maintained for the products.
Colgate-Palmolive was particularly critical of the fact that plaintiffs wanted to penalize it for being a leader in the push to create recyclable products.
The plaintiffs fired back with a reference to a federal “guidance” that said a product isn’t recyclable unless a significant majority of recycling facilities will actually accept the product. That lead to detailed and technical arguments about how much weight the federal guidance was entitled to in a California proceeding.
In the end, Spero sided with the plaintiffs.
In a dense and closely reasoned 46-page decision, he said that in order to claim something is recyclable, it had to be realistic that a consumer could actually recycle the product. Of course, not every facility in every community treats materials the same way, but the plaintiffs alleged that they would show at trial that “there is not a single program that accepts toothpaste tubes of any kind in California or in the United States because of the processing concerns that they pose.”
Spero was unpersuaded by Colgate-Palmolive’s argument, which he characterized as saying that the tubes were “intrinsically capable” of being recycled and a reasonable consumer would understand that. He thought products had to be actually recyclable for the advertising to be accurate.
Based on his analysis, he concluded that the plaintiffs’ claims passed the plausibility test and the case should proceed to the next phase of litigation where plaintiffs would need to prove that the facts that they have alleged are not just plausible but in fact true.
Neither party’s lawyers responded to a request for comments on the decision.
