Colgate Faces False Advertisement Suit Over Recyclable Claims

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A class action lawsuit has been filed in a California federal court against the Colgate-Palmolive Company (“Colgate”), alleging the company falsely advertises its Colgate and Tom’s of Maine branded toothpaste tubes as recyclable. The complaint alleges that Colgate’s claims are a violation of the Federal Trade Commission’s Green Guides, which prohibits a product from being called recyclable “unless there is an established recycling program, municipal or private, through which the product will be converted into, or used in, another product or package.”

The complaint also alleges California Business and Professions Code violations, which make it “unlawful for any person to make untruthful, deceptive, or misleading environmental marketing claims.”

A number of Colgate branded products, including but not limited to its popular products Colgate MaxFresh Toothpaste, Colgate Optic White Toothpaste, and Colgate Sensitive Toothpaste, feature the three-arrow recycling symbol atop the language “Recyclable Tube.” The company’s Tom’s of Maine product packaging advertises its toothpaste tubes as “The First of its Kind Recyclable Tube.” This language is used on over ten of its toothpaste products. None of the packaging of these products, Colgate or Tom’s of Maine, includes language that limits or qualifies the recyclability claims.

Additional recyclability claims are made on the brands’ websites. The Tom’s of Maine website features the following claims, which the Plaintiff alleges are misrepresentations:

  • “Recyclable Tube”
  • “Recycle Me!”
  • “Buy Smart – By reaching for this toothpaste tube you’re actively making a difference.”
  • “Recycle It – Our recyclable tube is not meant for a landfill – it gets turned into useful products.”
  • “As the leaders in the oral care industry, we wanted to create a recyclable alternative.”

While the toothpaste tubes are theoretically recyclable, a consultant at the Association of Plastic Recyclers stated, “[f]or many facilities in the US, the company’s new recyclable tubes are indistinguishable from those made from more common plastics, prompting recyclers to reject them. The old tubes could cause contamination if consumers put them in the recycling bin, so it’s easier for recycling facilities to reject toothpaste tubes across the board.”

In support of its argument, the complaint cites a recent Bloomberg article discussing the accuracy of Colgate’s claims with two solid waste management companies operating in California. (The two companies, Waste Management, Inc. and Republic Services, account for more than 40 percent of recycling services provided to consumers in California and about 25 percent of the recycling services on a national scale.) The companies highlighted that toothpaste tubes “are not in its list of acceptable items” and that there is serious concern about contamination from leftover toothpaste that remains in the tube.

According to the complaint, Colgate is fully aware that its products end up in landfills or are incinerated because recycling facilities do not accept its products. Colgate has even gone so far as to release a video on its website stating as much and explaining that the company is “continu[ing] the work beyond technically recyclable toward acceptance of tubes in recycling centers.” If recycling centers do not accept toothpaste tubes, their recyclability is irrelevant, and labeling and advertising their products as recyclable is false, misleading, and deceptive to consumers and members of the public seeking to make environmentally conscious purchasing decisions.

Plaintiffs seek an injunction on the sale of these products until such time the labeling and advertising language can be modified to remove recyclability language or alternatively to include a qualified claim that accurately states the availability of recycling programs. To be in compliance with the Green Guides’ environmental marketing requirements, a company is only permitted to make unqualified recyclable claims “[w]hen recycling facilities are available to a substantial majority of consumers or communities where the item is sold.” The Guides further clarify a substantial majority to mean at least 60 percent, and that “[w]hen recycling facilities are available to less than a substantial majority of consumers or communities where the item is sold, marketers should qualify all recyclable claims.”

Additionally, Plaintiffs are seeking compensatory and statutory damages.

PFAS Class Action Brought Against Sports Drink Company

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A consumer class action lawsuit has been filed against Biosteel Sports Nutrition, Inc. in the Eastern District of New York, alleging that the company’s BioSteel Blue Raspberry flavored sports drink contains per- and polyfluoroalkyl substances (“PFAS”). Defendant’s products are marketed as healthy sports drinks, using language such as “clean, quality ingredients,” “designed with sustainability in mind,” “no artificial flavors/colors,” and “good for you and the environment.” The product packaging additionally claims that the product is “highly regarded for its premium ingredients and zero sugar formula.”

Plaintiffs claim that based on this language, they believed the product to be a healthy sports drink, but the presence of PFAS directly contradicts Biosteel Sports Nutrition’s marketing claims. The suit alleges violations of the New York General Business Law § 349, et seq., which prohibits deceptive acts and practices in business, violations of New York General Business Law § 350, et seq. prohibiting false advertising, breach of express warranty, fraud, constructive fraud, and unjust enrichment.

On August 4, 2023, the company filed a motion to dismiss, claiming that Plaintiff’s testing of its product was insufficient to demonstrate that PFAS substances are present in its products. The motion claims the testing allegations are “devoid of any details regarding the methodology or sample used.” Additionally, according to Biosteel Sports Nutrition, this information was not within the complaint or the amended complaint.

EPA Requests Information on Addressing PFAS in the Environment for the Superfund Program

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EPA has published a notice of proposed rulemaking, Addressing PFAS in the Environment, asking for public input, which the Agency will use to develop future per- and polyfluoroalkyl substance (PFAS) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Agency asked for information on the potential future hazardous substance designation of a number of PFAS, categories of PFAS, and several PFAS precursors.

Request for Public Input Regarding Potential Future Hazardous Substance Designation of Seven PFAS

EPA had previously proposed designating PFOA and PFOS and their salts and structural isomers as hazardous substances under CERLA. The present notice requested feedback as to whether the agency should initiate action designating an additional seven PFAS and their salts and structural isomers or a subset thereof as CERCLA hazardous substances as well. The seven PFAS being considered for designation are:

  • Perfluorobutanesulfonic acid (PFBS), CASRN 375–73–5
  • Perfluorohexanesulfonic acid (PFHxS), CASRN 355–46–4
  • Perfluorononanoic acid (PFNA), CASRN 375–95–1
  • Hexafluoropropylene oxide dimer acid (HFPO–DA), CASRN 13252–13–6
  • Perfluorobutanoic acid (PFBA) CASRN 375–22–4
  • Perfluorohexanoic acid (PFHxA) CASRN 307–24–4
  • Perfluorodecanoic acid (PFDA) CASRN 335–76–2

EPA asked interested parties to submit information on whether any of these compounds may present substantial danger to public health or welfare or the environment. Such information could include data on mobility, persistence, and prevalence.

Request for Public Input Regarding Potential Future Hazardous Substance Designation of Precursors to PFOA, PFOS, and PFAS

The Agency is also considering initiating action that would designate certain PFAS precursors as hazardous substances under CERCLA. To make this determination, EPA requested information to help the Agency identify compounds that degrade to these PFAS through environmental processes such as biodegradation and hydrolysis.

Request for Public Input Regarding Potential Designation, or Designations, of Categories of PFAS as Hazardous Substances

Additionally, EPA is considering initiating action that would designate groups or categories of PFAS as CERCLA hazardous substances. These groups or categories would be based on characteristics that determine risk to human health and the environment, such as chemical structure, physical and chemical properties, mode of toxicological action, and precursors or degradants. To inform its decision-making, the Agency solicited the following information:

  • Published scientific literature that can inform whether categories of PFAS could or could not be designated as hazardous substances. This could include findings on the similarities or differences of a specific characteristic among PFAS. Also useful would be data on the relationship between different characteristics, such as the relationship between chemical structure and specific chemical, physical, or toxicological properties.
  • Other information that could inform EPA’s determination of whether to designate one or more categories of PFAS as hazardous substances.
  • Information that would contribute to economic analysis of the potential costs and benefits, including impacts on small entities, associated with a potential rulemaking designating categories of PFAS as hazardous substances. (Although CERCLA section 102(a) precludes EPA from taking cost into account in the designation of a hazardous substance, the Agency is requesting this information to help the Agency understand the potential costs and benefits associated with any potential future regulatory action.)

The deadline for submitting comments was extended from June 12 to August 11, 2023, during which period over 600 comments were submitted. The comments can be reviewed here.

EPA Releases Draft IRIS Assessment of PFHxS and Related Salts

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On July 24, 2023, EPA released a draft IRIS Toxicological Review of Perfluorohexanesulfonic Acid (PFHxS) and Related Salts.  Comments on the draft assessment will be accepted through September 22, 2023.

The IRIS assessment found that, given sufficient exposure conditions, PFHxS is likely to cause thyroid and developmental immune effects in humans.  Other evidence suggests but is insufficient to infer that PFHxS exposure might cause teratological, hepatic, neurodevelopmental, and cardiometabolic effects in humans.  EPA concluded that there is inadequate information to assess whether PFHxS exposure can result in hematopoietic, reproductive, renal, and carcinogenic effects.

PFHxS is one of three PFAS currently undergoing IRIS assessments, along with PFNA and PFDA.  EPA previously published final IRIS assessments for two other PFAS: PFBA in December 2022 and PFHxA in April 2023.

Better Business Bureau Challenge Results in Clarifying Disclosure in Antimicrobial Toilet Seat Advertising

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In response to a challenge initiated by Bemis Manufacturing Company, the National Advertising Division (NAD) of BBB National Programs has ruled that Ginsey Industries, Inc. needs to include additional clarifying language to validate the assertions made about the antimicrobial safeguards offered by its Clorox Antimicrobial range of toilet seats. (NAD did not find any issues with the underlying efficacy of the antimicrobial properties, solely how the antimicrobial benefits were conveyed to consumers.)

During the course of this challenge, Ginsey voluntarily committed to undertake the following measures:

  1. Incorporate a disclosure (a statement for clarification) onto its product packaging, advertising materials, and all descriptions of products featuring the term “antimicrobial.” This statement would read as follows: “This product does not provide protection against bacteria, viruses, or other disease organisms. It is important to thoroughly clean and wash this product before and after each use.”
  2. Revise all online listings of its products to eliminate the depiction of a shield containing an antimicrobial checkmark emblem positioned within the Clorox chevron logo.

NAD also recommended that Ginsey adjust its advertising to guarantee the prominent visibility of the clarifying statement. This recommendation included the following steps:

  1. Modify the advertising on its official website by relocating the clarifying statement in close proximity to any “antimicrobial” claims that trigger its usage.
  2. Collaborate with retailers to apply similar alterations to the advertising materials for its products on retail websites.

Additionally, NAD proposed that the clarifying statement should be prominently displayed and positioned in close proximity to any assertions that promote Ginsey’s products as having antimicrobial properties or containing such attributes. This recommendation extended to situations where such claims were associated with the well-known Clorox chevron logo on third-party websites.

DuPont De Nemours Inc. Sues EPA Regarding GenX Test Order

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Earlier this year, the US Court of Appeal for the Third Circuit ordered EPA to provide documentation regarding the Agency’s decision to order DuPont De Nemours Inc. to provide information on GenX chemicals through two section 4 test orders under the Toxic Substances Control Act (TSCA). DuPont brought this case to challenge the testing requirements imposed on the company, asserting that EPA had incorrectly identified the company as a manufacturer of the chemicals identified in the test orders:  hexafluoropropylene oxide (also known as trifluoro(trifluoromethyl)oxirane) and 6:2 Fluorotelomer sulfonamide betaine, two GenX chemicals. The test orders required testing on the inhalation effects toxicity of the chemicals in order to enable EPA to further understand protentional risks posed to human health and the environment. In addition to the cost of the toxicity studies, the manufacturers subject to the orders were assessed a fee of $11,650 to be split evenly amongst them.

After receiving the order to provide documentation, EPA requested several time extensions, but eventually stipulated to an agreement dismissing the case. The motion filed in May 2023 released DuPont from the test orders on 6:2 fluorotelomer sulfonamide betaine and hexafluoropropylene oxide. The Court then dismissed the case.

Audit Finds EPA’s New Chemicals Program Lacks Sufficient Guidance

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On August 2, 2023, EPA’s Office of Inspector General (“OIG”) released a report on its audit of EPA’s New Chemicals Program. The audit identified recordkeeping and quality assurance issues with the program as administered by EPA’s New Chemicals Division (“NCD”). The audit, which began in October 2021, was conducted in response to several internal complaints submitted to OIG.

The New Chemicals Program reviews whether new chemicals or significant new uses of existing chemicals pose an “unreasonable risk” to human health or the environment under the Toxic Substances Control Act (“TSCA”). According to the report, NCD did not have finalized, up-to-date guidance for recordkeeping or for many of the steps in the new chemicals review process, contrary to EPA protocol.  OIG stated that these issues resulted from insufficient staff resources, which prevented NCD from both conducting the chemical reviews within statutory time frames and finalizing guidance for the activities composing the review process. The report also found frequent technical issues with NCD’s TSCA Confidential Business Information systems.

Some of the complaints to OIG alleged that staff were pressured to focus on deadlines rather than chemicals’ potential risks during the new chemical review process. However, OIG found no evidence of this; for example, the report notes that NCD employees were not evaluated on the speed at which they reviewed chemicals.

OIG made the following four recommendations to EPA’s Office of Pollution Prevention and Toxics (“OCSPP”) based on its findings:

  1. Develop a plan to regularly review NCD’s guidance documents,
  2. Develop a plan to periodically assess the effectiveness of NCD’s recordkeeping system,
  3. Develop a plan to identify the root causes of the technical issues, and
  4. Conduct periodic reviews of NCD’s workload.

OCSPP’s response, which was included in the report, agreed with each of OIG’s recommendations and proposed corrective actions in line with the recommendations.

This audit was not the first to find issues with EPA’s implementation of TSCA provisions. A 2019 GAO report identified similar issues, such as insufficient guidance and resources, with the new chemicals review process. In 2020, OIG found that EPA had missed deadlines on existing chemical risk evaluations and that EPA’s ability to meet future deadlines was at risk. EPA has since proposed a fee adjustment designed to increase TSCA fee collections. Most recently, in February 2023, GAO determined that EPA had missed most TSCA deadlines for reviewing new and existing chemicals.  In general, EPA agreed in part or in full when recommendations were made in these reports and corrective actions have been completed or are pending.

FDA Reaffirms Softening Chemicals are Okay for Food Packaging

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FDA recently denied a citizen petition requesting that the Agency prohibit the use of eight ortho-phthalates and revoke prior sanctioned uses for five additional ortho-phthalates in food packaging. Ortho-phthalates are used to soften plastics. They can be found in plastic film wrap on foods, cap gaskets used on the metal lids of glass jars, beverage caps, and other packaging.

The original petition was submitted by Earthjustice in 2016. FDA responded in May 2022, denying the petition; Earthjustice submitted a petition for reconsideration in June of that same year. Earthjustice stated that it filed the petition for reconsideration because FDA needed to consider the “mounting scientific evidence that phthalates in food cause serious harm,” evidence that has been developed since the petition was originally submitted.  According to Earthjustice, there is now significant scientific evidence that links phthalates to fibroid tumors in women and preterm births.

The petition for reconsideration alleged that FDA ignored the scientific information presented within the original petition, did not take new information into consideration when denying the petition, and failed to take action on the use of phthalates. In its response to the petition for reconsideration, FDA maintained that it did, in fact, assess the scientific information presented in the original petition, which it did not find persuasive enough to change its position on phthalate regulation at this time.

Further, under 21 CFR § 10.33, FDA is only required to grant a petition for reconsideration if all the following criteria apply:

(1) The petition demonstrates that relevant information or views contained in the administrative record were not previously or not adequately considered.

(2) The petitioner’s position is not frivolous and is being pursued in good faith.

(3) The petitioner has demonstrated sound public policy grounds supporting reconsideration.

(4) Reconsideration is not outweighed by public health or other public interests.

The Agency holds that no information was presented in the petition that has not already been presented and is, therefore, in the administrative record. Because all of the above requirements must be met for reconsideration without the presentation of new relevant information in the petition, FDA has no further obligation at this time.

PFAS Action Filed Against The Children’s Place

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In July, a proposed class action lawsuit was filed against the children’s clothing store The Children’s Place, Inc. The complaint states that the company knowingly sells clothing containing per- and polyfluoroalkyl substances (PFAS) despite knowing that these substances are harmful to children’s health. Specifically, the complaint alleges violations of Illinois’ Consumer Fraud and Deceptive Business Practices Act, fraudulent concealment, breach of implied warranty, and unjust enrichment. The allegations are based on the company’s knowledge of the presence of PFAS in their school uniform products and their failure to disclose this fact in its labeling and advertising, knowing parents would not purchase or pay premium prices for the PFAS-containing products.

The Children’s Place products at issue in the case are school uniforms that meet the requirements of Chicago public and private schools. Plaintiff purchased a number of these items for her child. school uniform.  The complaint states that none of the labeling for these items identified the presence of PFAS in the products, and therefore, Plaintiff concluded that PFAS were not present in any of the school uniform items she purchased. However, according to the complaint, independent third-party testing determined many of these school uniform items contained PFAS. Plaintiff additionally claims that the presence of PFAS in these items runs counter to the testing protocols reported in the Children’s Place’s Annual Environment, Social, and Governance Report.  According to the report, the testing protocols help the company avoid unwanted chemical substances in its finished products and provide consumers with confidence that the products they purchase are safe.

The complaint cites to recent studies and reports on the presence of PFAS in children’s school uniforms, stating, “The presence of PFAS in school uniforms is particularly concerning, as uniforms are worn directly on the skin for upwards of eight hours per day, five days per week, by children, who are uniquely vulnerable to harmful chemicals. Due to children’s lower body weight and sensitive development, exposure to PFAS at a young age for prolonged periods of time may result in a greater lifetime threat of adverse health outcomes.” Plaintiff claims that because of the potential harm, she would not have purchased these products for her child had she been aware of the presence of PFAS.

EPA Seeks Input on Expansion of the Safer Choice and Design for the Environment Programs

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EPA recently solicited public comment on its proposed expansion of the Agency’s Safer Choice and Design for the Environment programs. The expansion would include certification of additional product categories; the programs are currently limited to cleaners and disinfectants. Participation in the programs by manufacturers is voluntary. The programs help consumers and businesses acquire products that meet strict criteria for effects on human health and the environment; products certified by the programs do not present a risk of harm to human health or the environment.

The proposed expansion comes as a result of increasing consumer interest in the chemicals used in products and consumers’ desire to make informed purchasing decisions. During the comment period, the Agency seeks input on which new product categories it should add to these programs and how adding these products will benefit the health of humans and the environment. All products in any category that is added will be subject to the human health and environmental toxicology criteria detailed in the Safer Choice Standard. No product containing intentionally added PFAS can be approved for either program.